|Article 1. Definitions
|For each Agreement to which these General Terms and Conditions are declared applicable, the following words and expressions are defined as follows:
|Additional or special conditions: conditions for a specific service that apply in addition to these General Terms and Conditions.
|Account: the personal account that ITQ makes available to the Client in order for it to be able to use certain purchased Services, and additional (sub)accounts created by the Client or ITQ.
|General Terms and Conditions: the present conditions, including the associated modules.
|GDPR: the General Data Protection Regulation (Regulation 2016/679 of 27 April 2016).
|Consignment Hours: hours outside Working Hours.
|Consultancy: the consultancy services ITQ is to provide to the Client pursuant to the Agreement, including – without limitation – consultancy work in the context of VMware environments.
|Service: a service that ITQ is to provide/has provided, as further indicated in the Agreement between ITQ and the Client. The services may include – without limitation – Consultancy and/or IT services, or the rental of Hardware.
|Hardware: the equipment the Client rents from ITQ under the terms of the Agreement.
|Intellectual Property Rights: all intellectual property rights and related rights, including – without limitation – copyright, database rights, rights to domain names, trade name rights, trademark rights, design rights, neighbouring rights, patent rights as well as rights to know-how.
|IT Services: the IT services ITQ is to provide to the Client pursuant to the Agreement, including – without limitation – managed multi-cloud services, modern app services and digital workspace services.
|ITQ: the private company ITQ Consultancy, having its registered office at Interleuvenlaan 62, 3001 Leuven (Belgium), registered with the Register of Legal Entities in Leuven under number 0689.960.109, or (other) affiliated companies of ITQ Consultancy BV.
|Candidate: the natural person, who may or may not be an employee of ITQ, whom ITQ makes available to the Client to perform work for the Client.
|Client Data: any data stored by the Client (or the end users of the Services) via or using the Services or otherwise provided to ITQ by the Client (or the end users of the Services).
|Master Agreement: the framework agreement between ITQ and the Client, containing additional conditions and provisions regarding the provision of ITQ’s Services to the Client and the resulting collaboration.
|Quotation: a written offer from ITQ specifying the Services provided, which forms an Agreement between ITQ and the Client. Every Quotation automatically includes the provisions of the Master Agreement and the General Terms and Conditions.
|Client: a natural person or legal entity acting in the conduct of a profession or business who or that has entered into an Agreement for the provision of Services with ITQ.
|Agreement: every Quotation on the basis of which ITQ provides Services to the Client, including the Master Agreement and the General Terms and Conditions and any other appendices.
|Parties: the parties to the Agreement, ITQ and the Client.
|Personal Data: any information relating to an identified or identifiable natural person within the meaning of Article 4(1) of the GDPR.
|Service Level Agreement: any further agreement the Parties have entered into, laying down arrangements concerning the quality of the Services provided, which will be linked to concrete and measurable key performance indicators.
|Controller: the Client who, in the performance of the Agreement, determines the purpose and means of the processing of Personal Data within the meaning of Article 4(7) of the GDPR.
|Processor: ITQ, as it processes Personal Data within the meaning of Article 4.8 of the GDPR for the benefit of the Controller, within the performance of the Agreement.
|Processing Agreement: The Processing of Personal Data Module, containing arrangements on the handling of Personal Data as referred to in Article 28(3) of the GDPR. This Module applies in addition to the general part of the General Terms and Conditions and – where applicable – the IT Services Module insofar as ITQ processes Personal Data for the Client’s benefit. The Processing of Personal Data Module is part of the General Terms and Conditions.
|Working Days: Monday through Friday, with the exception of national holidays, as well as national holidays in the country in which ITQ performs the work.
|Working Hours: hours on Working Days between 08:00 and 18:00.
Article 2. Applicability of the General Terms and Conditions
|The General Terms and Conditions apply to all offers, including the offers made by ITQ, the performance of work by or on behalf of ITQ and the performance of current or future Agreements. Offers or Agreements may be subject to additional or special conditions. In the event of a conflict between the General Terms and Conditions and the supplementary or special conditions, the supplementary or special conditions will prevail.
|The applicability of any purchase conditions, general terms and conditions or other conditions of the Client is expressly excluded. Provisions or terms and conditions stipulated by the Client that derogate from or are not included in these General Terms and Conditions will only be binding upon ITQ insofar as ITQ has expressly accepted these in writing.
|If any provision in these General Terms and Conditions is void or is voided, the other provisions of the General Terms and Conditions will remain fully applicable, and ITQ and the Client will consult in order to agree on new provisions to replace the void or voided provisions, taking the objective and purport of the void or voided provisions into account as much as possible.
|If the Client makes use of additional services offered by ITQ, the provisions of these General Terms and Conditions will apply by analogy to those additional services, unless otherwise indicated in the description of the relevant additional service.
|Any changes to these General Terms and Conditions will be announced on ITQ’s website, by means of an email to the Client or via another channel that allows ITQ to prove that the Client received the notice in such manner that it could actually take note thereof. Non-substantive minor changes can be made at all times, without requiring notification.
|If the Client does not wish to accept a change to the General Terms and Conditions, the Client must inform ITQ thereof, in writing, within fourteen (14) days of it becoming possible for it to take note of the General Terms and Conditions, stating reasons. This may give ITQ cause to reconsider the change. If ITQ does not subsequently revoke the change, the Client may terminate the Agreement with effect from the date on which the new terms and conditions take effect.
Article 3. Offer and acceptance
|All Quotations, quotes and offers by or on behalf of ITQ are without obligation, unless ITQ has stated otherwise in advance in writing or by email.
|ITQ will have based itself on information provided by the Client. If this information being incorrect or incomplete results in significant additional work, ITQ will be entitled to charge the additional costs to the Client.
|Subject to revocation, the term of validity of a Quotation, quote or offer from ITQ is thirty (30) days.
|The Agreement is entered into following the Client’s written acceptance of the Quotation or offer. Sending a purchase order, procurement order or other order, or any order confirmation or other confirmation in response to a Quotation submitted by ITQ will be considered written acceptance of ITQ’s Quotation.
|If the Client does not explicitly indicate that it agrees to the Quotation, but nevertheless agrees to ITQ carrying out work that falls within the scope of the description of the Services, or creates that impression, the Quotation will be deemed to have been accepted. The same applies when the Client requests that ITQ carry out certain work without awaiting a formal Quotation.
Article 4. The Agreement
|Any additions and amendments to the Agreement can only be agreed by Parties in writing.
|Without ITQ’s written permission, the Client cannot transfer its rights and/or obligations arising from or in connection with the Agreement and/or the additional services to third parties, whether in whole or in part.
|ITQ is entitled to transfer the rights and obligations from the Agreement, or part thereof, to a third party that, in ITQ’s opinion, is able to comply with the obligations arising from or in connection with this Agreement at the time of such transfer, without requiring the Client’s permission for doing so.
|The Parties will each bear their own responsibility for complying with legal obligations that apply for the relevant Party, including – without limitation – the obligations arising from the GDPR.
Article 5. Prices
|Unless otherwise indicated, the prices stated in the Quotations, offers and Agreements are in euros, and exclusive of VAT and any other levies arising from statutory regulations.
ITQ is authorised to charge the Client additional fees for any work done outside of Working Days and/or Working Hours.
|In the event of price fluctuations on the market (including changes to the rates of ITQ’s suppliers), changes to wages and/or social security contributions and changes to the applicable taxes that take place after the date of the Quotation, which are beyond the Service Provider’s control and result in an increase in ITQ’s costs with regard to the performance of the Services, ITQ reserves the right to adjust the rates as stated in the Quotation to these changed circumstances. The price will in such case be adjusted in the amount of the portion represented by the changed cost in the calculation of the price, to a maximum of 80% of the original price as determined in the Quotation. ITQ will, at the Client’s first request, submit the documentary evidence required to justify the changed (objective) circumstances that gave rise to a price adjustment in application of this article.
|In cases as described in Article 5.3, the Client is not entitled to terminate the Agreement.
Article 6. Payment Conditions
|The payment term of a sent invoice is thirty (30) days after the invoice date. ITQ is entitled to invoice electronically.
|Payment is to take place through transfer of the amount due to the account stated on the invoice sent by ITQ, without any set-off or suspension.
|If the Client does not comply with its payment obligation as agreed between the Parties in time, the Client will be in default without further notice of default being required, and ITQ reserves the right to permanently or temporarily suspend its work. From the moment the Client is in default, it will be obliged to pay default interest on the unpaid invoice amount in accordance with the interest rate set by the 2 August 2002 Belgian law on combating late payments in commercial transactions (Wet betreffende de bestrijding van de betalingsachtsterstand bij handelstransacties), as well as the actual extrajudicial or other collection costs incurred by ITQ, which are set at a minimum of €250.
Article 7. Performance and planning
|Upon entry into the Agreement, ITQ will endeavour to provide the Services as soon as possible, in accordance with the Agreement. Any terms communicated by ITQ are indicative and form a best-efforts obligation. Therefore, these are not to be considered deadlines.
|The Client must provide ITQ with all the support needed and desirable to enable the correct and timely provision of the Services. The Client must in any case provide all the data and other information that ITQ indicates are necessary, or that the Client may reasonably be expected to understand are essential for the provision of the Services.
|The Client is authorised to cancel the Consultancy free of charge, in writing, up to five (5) days before the date of the performance of the Consultancy services. In the event of cancellation between five (5) and two (2) Working Days before the date of the Consultancy, ITQ will be entitled to invoice the Client fifty (50) percent of the fee. If the Client cancels within two (2) Working Days before the date of the Consultancy, ITQ will be entitled to charge the Client the entire fee associated with the Consultancy. In this context, cancellation includes postponement of the assignment.
Article 8. Replacement, illness
|ITQ is authorised to replace a Candidate with a different Candidate, without being liable to pay compensation and/or any contribution towards the costs.
|In the event that, due to illness or any other cause, the Candidate is unable to perform work for the Client’s benefit for longer than five (5) Working Days, ITQ will make every effort to provide a replacement Candidate as soon as possible, whose qualifications will be as similar as possible.
Article 9. Contract extras
|The Client may request that ITQ carry out work that is outside the scope of the Agreement (i.e. request ‘contract extras’) at any time. However, ITQ is not obliged to comply with such requests.
|In the event of contract extras, ITQ will inform the Client of the (estimated) costs associated with this in advance and will only carry out the contract extras following approval from the Client. However, the above will not apply in the case of contract extras that are required in connection with the Services already agreed. Such contract extras can be carried out on the basis of subsequent costing, without the Client’s permission being required.
|When carrying out contract extras, ITQ will always base itself on the agreed rates or, if none have been agreed, the customary rates. ITQ can demand that a supplementary agreement be entered into for carrying out the contract extras.
Article 10. Termination
|Without prejudice to the provisions of the Agreement, ITQ is entitled to terminate the Agreement in writing, with immediate effect, and without judicial intervention being required if the Client fails to comply with one or more of its obligations towards ITQ in full and/or in time or acts contrary to these obligations.
|ITQ is entitled to terminate the Agreement with immediate effect, without notice of default or judicial intervention being required, in the event of the Client being put into liquidation or being declared bankrupt, apparent inability to pay or a cessation of payments from the Client, or a request for a moratorium or judicial reorganisation from the Client, or in the event that the Client loses the right to dispose of all or a portion of its assets or otherwise.
|In the circumstances referred to in Article 10.1 and 10.2, the Client is not entitled to compensation.
Article 11. Intellectual property rights
|All Intellectual Property Rights to the Services are exclusively vested in ITQ or its licensors. Unless expressly otherwise agreed in writing, these rights will under no circumstances be transferred to the Client.
|The Client must respect the Intellectual Property Rights relating to the Services and indemnifies ITQ against any third-party claims in respect thereof.
|All rights to Client Data, including any Intellectual Property Rights that may be vested in these, will be vested in the Client. ITQ will not claim any ownership thereof.
|The Client hereby grants ITQ a limited right of use to use the Client Data during the term of the Agreement, insofar as this is necessary for the provision of the Services.
|Insofar as the Client Data consist of Personal Data, the arrangements as laid down in the Processing of Personal Data Module of these General Terms and Conditions apply.
Article 12. Obligations of the Client
|Insofar as, pursuant to the Agreement, the Candidate is required to work on the Client’s premises, the Client must provide the Candidate with an adequate and safe workplace in accordance with the applicable labour regulations and/or labour laws.
|ITQ will at all times retain the employer’s control of its employees and will continue to be subject to any related obligations concerning social security, insurance, etc., with regard to its employees (and the Candidate).
|The Client will always provide ITQ and its Candidate with any data and information that are important in the proper performance of the work in due time.
|Unless otherwise agreed in the Agreement, the Client must make it possible for ITQ and the Candidate to work online (work remotely).
Article 13. Reporting defects
|The Client must submit a written claim in respect of defects in the Services provided and/or the invoice amount no later than within fourteen (14) Working Days of the date of the invoice being sent, or within fourteen (14) Working Days of the defect being discovered, failing which any claim against ITQ will lapse.
|If the Client’s claim is well founded, ITQ will adjust or compensate the Services following consultation. Reporting defects does not suspend the Client’s obligations.
Article 14. Force majeure
|If ITQ fails to comply with its obligations in connection with force majeure, it will not be liable. Insofar as compliance is not permanently impossible, compliance with its obligations will be suspended. If the period in which compliance is impossible due to force majeure lasts or is going to last longer than thirty (30) days, each of the Parties affected by the force majeure is authorised to terminate the Agreement with immediate effect. In such cases, the Services that were provided by ITQ prior to the commencement of the force majeure situation and during the force majeure situation will be charged on a proportional basis.
|If, upon commencement of the force majeure situation, ITQ has already complied with some of its obligations, ITQ will be entitled to invoice separately for the Services already provided and/or the Hardware already delivered, and the Client will be obliged to pay the relevant invoice.
|Force majeure on ITQ’s side must be understood to include all external causes that are not directly attributable to ITQ’s behaviour, as a result of which ITQ is unable or cannot reasonably be required to comply with its obligations towards the Client, regardless of whether this circumstance was foreseeable at the time of entry into the Agreement. These include – without limitation – government-imposed obligations that affect the Service, failures in the systems that are part of the Client’s infrastructure, the telecommunications infrastructure or failures in networks, attacks by malware or other malicious software, civil commotion, natural disasters, terror, mobilisation, war, import and export impediments, strikes, stagnation in supplies, fire and floods, and ITQ being prevented from complying with its obligations by its suppliers, regardless of the reason for that.
|If ITQ is unable to perform the Consultancy at the time agreed upon between the Parties, or if the assignment needs to be postponed or cancelled due to circumstances on the Client’s side, the provisions of Article 7.3 will apply regardless of the nature of the circumstances on the Client’s side.
Article 15. Liability
|If one of the Parties fails to comply with one or more obligations under the Agreement, the other Party will give written notice of default, granting it a reasonable period in which to comply with its obligation(s) after all, unless compliance with the relevant obligation(s) is already permanently impossible, in which case the defaulting Party will be immediately in default.
|Any liability of ITQ as a result of a default in the compliance with the Agreement, a wrongful act or otherwise is limited to half the invoice amount (exclusive of VAT) associated with the Agreement, one of the Parties to which has failed attributably, per event, in which context a series of successive events counts as a single event, but in any event to the amount of €50,000 per Agreement.
|ITQ will only be liable for direct losses arising from an attributable failure in the performance of the Agreement. Direct losses will only mean:
a) material damage to tangible objects belonging to the Client or third parties (‘property damage’);
b) reasonable and demonstrable costs incurred by the Client in demanding that ITQ perform or resume performing the Agreement properly, unless the defective performance is not attributable to ITQ;
c) reasonable costs to determine the cause and the extent of the loss;
d) reasonable and demonstrable costs incurred in having the Agreement performed by a third party, if, having received notice from the Client, ITQ fails to comply with its obligations or resume compliance with its obligations within the reasonable term stipulated in the notice;
e) reasonable and demonstrable costs incurred by the Client to prevent or limit the direct loss, insofar as the Client can demonstrate that such costs have resulted in limitation of the loss.
|ITQ will not be liable for any form of loss other than the losses referred to in Article 15.3.
|Any limitation or exclusion of liability stipulated in the Agreement will not apply in the event that the loss is due to an intentional act or wilful recklessness on the part of ITQ’s management/supervisors or constitutes death or personal injury.
|If, as a result of an event as referred to in Article 15.2, more than one claim arises and the combined claims exceed the limits set in the same paragraph, the Party liable for compensation will only be obliged to pay the combined claims in proportion to the limits set in Article 15.2.
|In the event of loss of and/or damage to the Client Data that is due to ITQ’s actions, ITQ will make every effort to resolve the issue for the Client.
|Each of the Parties will report any loss to the other Party, in writing, as soon as possible, though no later than four weeks after the loss arises. Any loss that is not reported within this term will not be eligible for compensation, unless the other Party can demonstrate that a timely written reaction could not reasonably have been expected from it.
Article 16. Confidentiality
|The Parties and the Parties’ employees are obliged to keep confidential any information that comes to their knowledge by virtue of the Agreement, insofar as this relates to the development, implementation and processes of the Service and/or the Hardware, in the broadest sense. This obligation will also apply after termination of the Agreement.
|The Parties and the Parties’ employees must refrain from using the information referred to in the preceding paragraph or any part thereof for any purpose other than performance of the Agreement in any way whatsoever, which includes – without limitation – multiplication and publication thereof.
Article 17. Takeover of staff
|During the performance of the assignment and for one (1) year after completion thereof, neither Party may employ Candidates of the other Party who have been involved in the performance of the assignment or negotiate with these Candidates about employment, except in consultation with the other Party.
Article 18. Applicable law
|The Agreement is exclusively governed by Belgian law.
|Any disputes will be exclusively submitted to the competent court in the jurisdiction in which ITQ’s registered office is located.
Article 19. Balance
|The Parties acknowledge that they are fully aware of their rights and obligations, that the Agreement has been entered into completely freely, that the Parties have had sufficient time to negotiate and enter into the Agreement and that the Agreement and the provisions therein do not create any apparent imbalance between the rights and obligations of the Parties.
MODULE – ICT SERVICES
|This IT Services Module applies in addition to the general part of the General Terms and Conditions insofar as, pursuant to the Agreement, ITQ provides IT Services to the Client.
Article 20. Accounts
|If this is part of the Services, ITQ will – following formation of the Agreement – give the Client access to an Account by providing login details or by giving the Client the option of creating its own login details.
|All Accounts and the associated login details are strictly confidential and may not be shared with third parties.
|Each action performed through the Client’s Account or an Account created by the Client will be deemed to have taken place under the responsibility and at the risk of the Client. If login details of an Account have been lost or leaked, or if the Client suspects or may reasonably be expected to suspect or know that an Account is being misused, the Client must immediately take any measures that may be required or desirable to prevent misuse or further misuse. These measures may for instance consist in changing the login details or blocking the Account. In addition, the Client must immediately inform ITQ, so that it can take additional measures (if any).
Article 21. Rules of use
|The Client is forbidden from using the Services to violate national, supranational or international laws and regulations that apply to the Client or ITQ or to infringe the rights of other parties.
|Regardless of whether this is legal, it is forbidden to use the Services to offer or spread materials that:
a. incorporate, or contain a link to, malicious content (such as viruses, malware or other harmful software);
b. infringe on the rights of third parties (e.g. Intellectual Property Rights) or are manifestly defamatory, libellous, offensive, discriminatory or inflammatory;
c. contain information on (or that may aid in) infringing the rights of third parties, such as hack tools or information on computer crime intended to enable readers to commit a crime or make readers commit a crime, and not to enable readers to defend themselves against such crimes;
d. violate the privacy of third parties, which in any case includes – without limitation – the processing of Personal Data of third parties without permission or another basis; or
e. contain hyperlinks, torrents or links to materials or the locations of materials that infringe Intellectual Property Rights.
|The Client will refrain from hindering other clients or Internet users or inflicting damage on the systems or networks of ITQ or other clients. The Client is forbidden from starting up processes or programs using ITQ’s systems or otherwise that the Client knows or may reasonably be expected to assume will hinder or cause a loss to ITQ, its clients or Internet users.
|The Client indemnifies and will hold ITQ harmless against any type of claim, charges or proceedings instituted by a third party in connection with the content of the data traffic or the material that the Client, the Client’s customers and/or other third parties place on or distribute via the Service.
|If, in ITQ’s opinion, the operation of the computer systems or ITQ’s network or thirdparty networks and/or service provision via the Internet is hindered, damaged or otherwise at risk, in particular due to the transmission of excessive amounts of email or other data, Denial-of-Service attacks, inadequately secured systems or virus activities, Trojan horses and similar software, ITQ is authorised to take all reasonable measures it deems necessary to avert or prevent such risk. Insofar as the Client can be blamed for this, ITQ may charge the costs that are reasonably associated with these measures to the Client.
|A good Internet connection is required for the provision of IT services. The Client is responsible for having an Internet connection with sufficient bandwidth. In the event of problems in the Client’s Internet connection, ITQ will not be compelled to comply with its obligations under the Agreement, and ITQ will be entitled to suspend compliance with these until the Internet connection has been restored.
Article 22. Notice and take-down
|If a third party informs ITQ or if ITQ itself concludes that the Services are being used to store or distribute certain materials that infringe upon third-party rights or are otherwise unlawful or in contravention of laws and regulations or the Agreement, ITQ will inform the Client of the complaint or the violation as soon as possible.
|ITQ will give the Client an opportunity to respond to the complaint within a reasonable period and take measures if necessary. If the Client fails to do so, ITQ itself can take all reasonable measures to put an end to the violation. This may result in certain data being removed or made inaccessible or access to the Services being blocked in full or in part. In urgent cases, ITQ can intervene immediately, without warning the Client.
|In the event that the Materials concern Materials that may constitute a criminal offence, ITQ is entitled to report this to the authorities. ITQ may in this connection hand over the materials in question and all relevant information on the Client and third parties (including customers of the Client) to the competent authorities and perform all other acts that these authorities request ITQ to perform as part of the investigation.
|ITQ will not be liable for any loss suffered by the Client, the Client’s customers or the end users as a result of a shut-down of the Services or the removal of materials in connection with the procedure described in this article.
|ITQ is entitled to provide the name, address and other data identifying the Client or end user concerned to a third party that has complained that the Client has violated its rights, provided that the requirements applicable for this under the law or case law have been complied with.
|The Client will indemnify ITQ against any third-party claims that are based on the assertion that the materials that are stored or distributed through use of the Services infringe its rights or are otherwise unlawful.
Article 23. Installation and configuration of software
|Unless otherwise agreed in writing, the Client itself bears full responsibility for the installation and configuration of the Services. ITQ can charge costs to the Client for any support it provides in this connection.
|Unless otherwise agreed in writing, the Client is not entitled to carry out modifications independently or to install software within Services administrated by ITQ (including – without limitation – online workplaces) without ITQ’s written permission.
|If the Client wishes to modify the software independently, it will be entirely at the Client’s own risk and responsibility, unless the Client has reported the intended modification to ITQ beforehand and ITQ has approved it, in writing. ITQ may attach conditions to this approval.
Article 24. Storage and data limits
|ITQ may impose a maximum for the capacity (for instance, volume of data traffic, processing capacity, memory, storage or electricity) that the Client may or can actually use within the framework of the Services.
|If this maximum is exceeded, ITQ will be entitled to charge additional costs or (following a written warning) to restrict the use of the Services or to reduce it to the permitted capacity.
|If a specific limit or capacity applies for the Services, this can be raised or reduced in consultation with ITQ. An increase or upgrade of the Services can be implemented with immediate effect. A reduction or downgrade, however, can only be implemented with effect from the date of the first extension of the Agreement and subsequently by the end of every month.
|Any credit awarded to the Client cannot be carried over to a subsequent month or transferred to another agreement or another client of ITQ.
|ITQ will not be liable for the consequences of being unable to send, receive, store or change data or any incorrect operation of the Services if the Client exceeds an agreed limit (for instance, the volume of data traffic, processing capacity, memory, storage or electricity).
Article 25. Fair use
|If no limit has been set for the capacity (for instance, the volume of data traffic, processing capacity, memory, storage or electricity) for the Services, a fair use policy will apply to the Services concerned.
|ITQ can further specify the fair use policy, which will in that case be made available to the Client in writing or can be consulted via ITQ’s website. ITQ reserves the right to amend or supplement the policy at any time and will inform the Client in writing in advance in such a case.
|If there is no expressly defined fair use policy, it will be understood to mean that the Client may use at most twice as much capacity as that used by other clients of ITQ that purchase the same or comparable Services in comparable circumstances.
|If the use of the Services exceeds the fair use policy, ITQ will enter into consultation with the Client about – for example – the purchase of an alternative Service or service level. If the Parties do not reach agreement within a reasonable period to be determined by ITQ, ITQ will be authorised to limit or block the Services. If the limits are exceeded, ITQ will not be responsible if the Services do not operate or do not operate correctly.
Article 26. Availability, maintenance and support
|ITQ will make every effort to realise good and uninterrupted availability of the Services and the associated systems and networks and to realise access to the data the Client has stored through these. However, unless otherwise agreed in a Service Level Agreement (SLA) that has been designated as such, ITQ will provide no guarantee with regard to quality and availability. However, in this respect, ITQ is dependent on its supplier(s).
|Insofar as not otherwise stipulated in the applicable SLA, ITQ will keep itself available for a reasonable level of remote customer support during Working Hours.
|Unless otherwise agreed in the SLA, ITQ will make every effort to respond to any request for support as soon as possible, but it cannot provide any guarantees in respect thereof.
|ITQ will make every effort to keep the software used for the Service up to date. However, in this respect, ITQ is dependent on its supplier(s). ITQ is authorised to not install certain updates or patches if, in its opinion, this is of no benefit to a correct provision of services.
|ITQ will endeavour to modify the software from time to time in order to improve functionality and correct errors. In the event of new functionalities or modifications that can substantially change software operation, ITQ will seek consultation with the Client in advance.
|ITQ will endeavour to add any changes and new functionalities requested by the Client to the software. However, ITQ will at all times be entitled to refuse such a request if, in its opinion, it is unfeasible or if this may compromise the proper performance, controllability or availability of the software.
|ITQ will make every effort to support the Client in the event of continuity incidents or security incidents. Unless a Service Level Agreement provides otherwise, ITQ is entitled to charge for the above-mentioned support, at the hourly rates applicable at that time.
Article 27. Backups
|Where explicitly agreed between the Parties in writing, ITQ will regularly make backup files of the data stored by the Client on ITQ’s or its suppliers’ systems and make these backups available to the Client at the Client’s request, at a fee, or have a third party do so. Such efforts and any other efforts made by ITQ within the framework of the backups and at the Client’s request will be made for an additional payment. Insofar as the Parties have not agreed otherwise, the payment will be calculated on the basis of the hourly rate ITQ applies at the time.
|With regard to the backups, the Client itself is responsible at all times for the accuracy of the data, any recovery of the backups and the verification preceding such recovery, unless otherwise agreed. The backups may be destroyed at any time after termination of the Agreement. The Client will at all times be responsible for requesting a spare copy in the event of termination or cancellation.
Article 28. Third-party conditions
|Third-party products and/or services may be part of the Service. If this is the case, the general and other conditions of the relevant third party will apply to the relevant products and/or services and the use thereof as well.
MODULE – RENTAL OF HARDWARE
|This Rental of Hardware Module applies in addition to the general part of the General Terms and Conditions insofar as, pursuant to the Agreement, the Client rents Hardware from ITQ.
Article 29. Delivery
|After the Agreement has been entered into, ITQ will make every effort to make the Hardware available to the Client in accordance with the Agreement, or within a reasonable term.
|ITQ provides the Client with the right to use the Hardware for the duration of the term of the Agreement, or – if a derogating rental period has been agreed upon – for the duration of the agreed rental period, in accordance with the conditions from this module and any additional conditions agreed upon by the Parties.
|Without the express prior written permission of ITQ, the Client is forbidden from transferring, subleasing, pledging or otherwise encumbering the Hardware.
|The risk of loss of theft of or damage to the Hardware transfers to the Client the moment ITQ delivers the Hardware to the agreed address.
|The Hardware will be considered to have been delivered undamaged, unless, within 5 Working Days of delivery, the Client indicates to ITQ, in writing and with sufficient substantiation, that the Hardware was already damaged before delivery.
Article 30. Installation
|If agreed, ITQ will install the Hardware at a location and in a manner determined in the Agreement. ITQ is entitled to refuse installation of Hardware at a certain location if, in its professional opinion, the location is not possible or proper functioning of the Hardware at the location in question cannot be guaranteed.
|The Client will continue to be responsible for proper power supplies and network connections. If the above-mentioned facilities are not present, ITQ may not be able to carry out a correct and complete installation.
|ITQ is entitled to engage third parties for the purpose of installing the Hardware as referred to in the preceding paragraph.
|The Client will give ITQ or the third party/parties engaged by ITQ access to the designated location and provide the cooperation required for the installation of the hardware.
Article 31. Use
|The Client will only use the Hardware for the purposes for which the Hardware is intended according to its nature and will in this connection carefully follow any instructions provided by ITQ and/or the manufacturer.
|Without ITQ’s prior written permission, the Client is not permitted to make changes to the Hardware. If the Client makes such changes without ITQ’s prior written permission, any costs of repair or replacement will be completely at the Client’s expense.
|ITQ will make every effort to keep the Hardware available for the Client and to resolve any malfunctions and technical problems as quickly as possible. The Client can only claim specific Service Level Agreements, such as a certain availability or response time, if this has been agreed in writing.
Article 32. Operation and guarantees
|The Client accepts that the functionality and other features of the Hardware are only as found by the Client at the time of delivery. Unless the Agreement explicitly provides for additional guarantees, the Hardware is delivered ‘as is’ (i.e. with all visible and invisible faults and defects).
Article 33. Risk and insurance
|After delivery, the risk of loss or theft of or damage to the Hardware will, for the entire period of use, be borne by the Client, regardless of the cause of the occurrence of the loss.
|Loss or theft of or damage to the Hardware will not affect the Client’s agreed payment obligations. Any costs of repair or replacement of the Hardware will be at the Client’s expense.
|The Client is obliged to inform of any loss or theft of or damage to the Hardware without delay. ITQ will make every effort to repair or replace the Hardware within a reasonable period of time or to have another party do so.
|During the term of the Agreement, the Client must, at its own expense, keep the Hardware adequately insured against – among other things – fire, water damage and theft of the Hardware.
|The Client must ensure that, within the framework of the above-mentioned insurance, ITQ is included as third-party beneficiary or co-insured. If this is not reasonably possible, the Client will assign its claim on the insurer in question to ITQ.
|At ITQ’s first request, the Client will provide copies of the policy for the abovementioned insurance and/or submit proof of full and timely premium payment.
Article 34. Ownership
|The Hardware is and will continue to be the property of ITQ. Nothing in the Agreement provides for the transfer of ownership of the Hardware to the Client or third parties.
|ITQ may place markings or labels on the Hardware (or the software installed on it) that make the Hardware recognisable as being the property of ITQ. The Client is expressly not permitted to change, remove or render unreadable such markings or labels.
|If a third party wishes to attach the Hardware (or have it attached) or establish or realise rights in respect of the Hardware, the Client must inform ITQ thereof, in writing, without delay. The Client hereby unconditionally grants ITQ permission to, in such cases, enter all places where the Hardware is located and repossess it.
|The provisions of the preceding paragraph also apply if the Client suspects or must reasonably suspect that third parties will seize the Hardware or have it seized or lay claim to it. Such a presumption will in any case exist if the Client is no longer able to satisfy its creditors or knows that it will not be able to satisfy its creditors in the near future.
|If the Hardware is attached by the Client’s creditors or due to a dispute involving the Client, this will not release the Client from its payment obligations.
Article 35. Returns
|If the Agreement expires or is terminated, the Client will return the Hardware as soon as possible, though no later than within 14 days, in accordance with ITQ’s instructions. If the Client does not return the Hardware in due time, the Client will owe ITQ the agreed rental fee for the entire period until the Hardware is returned.
|Any costs associated with returning the Hardware will be at the Client’s expense. The Client will ensure that the Hardware is adequately packed and return it by means of an insured shipment.
|The Client is obliged to return the Hardware to ITQ in undamaged condition, save for normal wear and tear of the Hardware. If ITQ discovers that the Client has made changes to the Hardware without ITQ’s written permission or that the Hardware is damaged, any costs for replacement or repair will be completely at the Client’s expense.
MODULE – PROCESSING OF PERSONAL DATA
|This Processing of Personal Data Module applies in addition to the general part of the General Terms and Conditions and – where applicable – the IT Services Module and/or the Rental of Hardware Module insofar as ITQ processes Personal Data for the Client’s benefit.
Article 36. Introduction
|The parties have entered into an Agreement. In the performance of the Agreement, ITQ can be regarded as a Processor within the meaning of Article 4(8) of the GDPR, and the Client can be regarded as a Controller within the meaning of Article 4(7) of the GDPR.
|Insofar as this is within its power, ITQ is willing to comply with obligations relating to the GDPR.
|The GDPR imposes on the Controller the obligation to ensure that the Processor provides sufficient guarantees in respect of the technical security measures and organisational measures governing the processing to be carried out, and the obligation to ensure those measures are complied with.
|Partly in view of the requirements under Article 28(3) of the GDPR, the Parties wish to lay down their rights and obligations by means of this Module.
Article 37. Purposes of processing
|ITQ undertakes to process Personal Data for the Client’s benefit, subject to the conditions of this Module. Processing will only take place within the framework of this Module for the duration and purpose set out in Article 48 of this Module and those purposes that are specified in mutual consultation in the Agreement.
|The Personal Data that ITQ processes or is to process within the framework of the Agreement, and the categories of data subjects to whom the Personal Data pertain, depend on the service ITQ provides according to the Agreement. The categories of Personal Data and types of data subject(s) from whom ITQ processes Personal Data are specified in Article 48 of this Module. ITQ will not process the Personal Data for any purpose other than that determined by the Client. The Client will inform ITQ of the purposes of the processing where these are not already stated in this Module.
|ITQ has no control over the purpose and the means of processing the Personal Data. ITQ will take no independent decisions with regard to the receipt and use of the Personal Data, provision of the data to third parties and the duration of the storage of the Personal Data.
Article 38. Obligations of ITQ
|ITQ will ensure compliance with the conditions set pursuant to the GDPR in respect of ITQ’s processing of Personal Data based on its role as Processor.
|ITQ’s obligations arising from this Module also apply to those processing Personal Data under ITQ’s authority.
|ITQ will notify the Client without delay if it feels that an instruction issued by Client is in breach of the GDPR.
|ITQ will, insofar as this lies within its power, provide assistance to the Client for compliance with the obligations pursuant to Articles 32 through 36 of the GDPR, including the performance of data protection impact assessments (DPIAs) and any required prior consultation with the Dutch Data Protection Authority. ITQ may charge reasonable costs for doing so.
Article 39. Transfer of Personal Data
|ITQ may process the Personal Data in countries within the European Economic Area (EEA). In addition, ITQ is allowed to transfer the Personal Data to a country outside the EEA, provided that the relevant country guarantees an appropriate level of protection and meets its other obligations under this Module and the GDPR.
Article 40. Division of responsibility
|ITQ will carry out the permitted processing activities within an automated or semiautomated environment.
|ITQ will be responsible only for the processing of the Personal Data under this Module, in accordance with the Client’s instructions and under the express (ultimate) responsibility of the Client. ITQ will not be responsible for any other processing of Personal Data, which in any case includes, without limitation, the collection of the Personal Data by the Client, processing for purposes that the Client did not communicate to ITQ, processing by third parties and/or processing for other purposes. The responsibility for such processing will lie exclusively with the Client.
|The Client warrants that the content, the use and the instructions for the processing of Personal Data as referred to in this Module are not unlawful and do not infringe any third-party rights.
Article 41. Engagement of third parties or subcontractors
|The Client hereby gives ITQ general permission to engage a third party in the processing of Personal Data pursuant to this Module, with due observance of the GDPR. The third parties engaged by ITQ at the time of entry into the Agreement are listed in Article 48.
|At the Client’s request, ITQ will inform the Client of the third parties it has engaged. The Client has the right to object to any third party engaged by ITQ, in writing, stating reasons. If the Client objects to the third parties engaged by ITQ, the Parties will consult in order to reach a solution.
|ITQ will in any case ensure that these third parties assume obligations that are similar to those agreed between the Client and ITQ, in writing. ITQ warrants correct compliance with these obligations by these third parties and, in the event of errors committed by these third parties, will be as liable for any and all losses as it would be if it had committed the errors itself.
Article 42. Security
|With regard to the processing of Personal Data to be performed, ITQ will endeavour to take appropriate technical and organisational measures against loss or any form of unlawful processing (such as unauthorised inspection, interference, alteration or disclosure of the Personal Data).
|ITQ will make every effort to ensure that the level of security is appropriate in view of the state of the art, the sensitivity of the Personal Data and the costs associated with the security measures taken.
|If a vital security measure is found to be absent, ITQ will ensure that the security provided meets a standard that is not unreasonable in view of the state of the art, the sensitivity of the Personal Data and the costs associated with the security measures taken.
Article 43. Data leaks
|ITQ will inform the Client of any data breach (which must be understood to include: a breach of security leading to the accidental or unlawful destruction, loss, alteration, unauthorised disclosure of or access to Personal Data transmitted, stored or otherwise processed (Article 4(12) GDPR)), without undue delay, on the basis of which information the Client will decide whether or not it will inform the supervisory authorities and/or data subjects. ITQ will make every effort to ensure that the information provided is complete, correct and accurate.
|The Client will ensure that any statutory or other reporting obligations are complied with. If required by the rules and/or regulations, ITQ will cooperate in informing the relevant authorities and any data subjects. ITQ may charge reasonable costs for doing so.
|De meldplicht behelst in ieder geval het melden van het feit dat er een lek is geweest, alsmede voor zover bekend bij ITQ:
o the date on which the breach occurred (or, if the exact date is unknown: the period within which the breach occurred);
o the supposed or known cause of the breach;
o the date and the time at which ITQ or a third party or contractor engaged by ITQ became aware of the leak;
o the number of people whose Personal Data were leaked (or, if the exact number is unknown: the minimum and maximum numbers of people whose data were leaked);
o a description of the group of persons whose Personal Data have been breached, including a description of the type or types of Personal Data that have been breached;
o whether the data were encrypted, hashed or otherwise rendered incomprehensible or inaccessible to unauthorised parties;
o the measures ITQ intends to take and/or has already taken in order to close the leak and limit the consequences of the leak;
o contact details for following up on the report.
Article 44. Rights of data subjects
|In the event that a data subject submits a request to exercise their statutory rights to ITQ, ITQ will forward such request to the Client and inform the data subject thereof. The Client will subsequently process the request independently. If the Client requires ITQ’s assistance in processing a request from a data subject, ITQ may charge reasonable costs for providing it.
Article 45. Confidentiality
|All Personal Data ITQ receives from the Client and/or collects itself within the framework of this Module are subject to a duty of confidentiality towards third parties. ITQ will not use this information for any purpose other than that for which it was provided to ITQ, unless it has been rendered into a form in which it cannot be traced back to the data subjects.
|This duty of confidentiality does not apply insofar as the Client has expressly granted permission to provide the information to third parties, if providing the information to third parties is logically required in view of the instruction given and the performance of this Module or in the event of a statutory obligation to provide the information to a third party.
Article 46. Audit
|The Client is authorised to have audits performed by an independent expert who is bound to secrecy in order to verify compliance with all the security requirements.
|Such an audit will only take place after the Client has requested and assessed any similar audit reports that ITQ has available and presents reasonable arguments that still justify an audit initiated by the Client. Such an audit is justified if the similar audit reports that ITQ has available provide an insufficient or inconclusive answer with regard to compliance with the security requirements. The audit initiated by the Client will take place after two weeks’ prior notice from the Client and no more than once a calendar year.
|ITQ will cooperate in the audit and make available any employees and information that may reasonably be relevant to the audit – including supporting data such as system logs – in due time and within a reasonable period, in which context a term of no more than two weeks is considered reasonable, unless an urgent interest dictates otherwise The Client will ensure that the audit’s disruptive effect on ITQ’s other activities is kept to a minimum.
|The Parties will jointly assess the findings of the audit carried out and will determine on that basis whether or not those findings will be implemented by one of the Parties or both Parties jointly.
|The costs of the audit will be borne by the Client.
Article 47. Duration and termination
|This Module applies for the term specified in the Agreement between the Parties, in the absence of which it will at least apply for the duration of the collaboration.
|The Module cannot be terminated prematurely.
|As soon as this Module is terminated, for whatever reason and in whatever manner, ITQ will – at the Client’s option – return all Personal Data held by it, whether in the original format or as a copy, to the Client and/or delete and/or destroy these original Personal Data and any copies thereof.
Article 48. Information on the processing of Personal Data