This document defines the General Terms and Conditions applicable to the provision of Davinsi Labs products (hardware and/or software) and services to the customer.
The agreement is composed of (i) these General Terms and Conditions and (ii) the statement of work and (iii) any particular terms and conditions applicable to the customer as agreed to between Davinsi Labs and the customer in writing. In case of conflict or inconsistencies between these documents, the following order of precedence will apply: (i) particular terms and conditions agreed to in writing between Davinsi Labs and the customer (if any) will take precedence over (ii) the statement of work, which will in its turn take precedence over (iii) these general terms and conditions.
By ordering products or services from Davinsi Labs, the customer unconditionally accepts these General Terms and Conditions and waives the application of his own general terms and conditions, even if these declare to be the only applicable ones.
The customer understands and agrees that the General Terms and Conditions are updated from time to time and that the version of the General Terms and Conditions which applies between them is the version found on the website of Davinsi Labs.
By ordering the products and/or services, the customer confirms that he has the power and authority required to bind the customer. Davinsi Labs reserves the right to refuse an order or request at its sole discretion.
THE CUSTOMER'S RIGHTS AND OBLIGATIONS
The customer must take all measures necessary to protect his infrastructure and is solely responsible for setting up procedures (including back-ups) that allow at any time to reconstruct lost or altered files, data, or programs, regardless of the cause of loss or alteration. Such measures must be in place before the service is started and/or product is installed. In case (parts) of the infrastructure is owned or hosted by a third party, the customer warrants that it will fully inform such third party of all the risks involved in the performance of the services, obtain approval of such third party to have the services performed (if necessary) and inform the third party of its obligation to protect the infrastructure as set out in this clause.
As part of the services provided by Davinsi Labs, the customer may be able to access and use one or several online portal(s) (hereinafter the ‘Portal’). The customer shall ensure that only authorized persons are granted such access. The customer shall comply with any security or technical standards imposed by Davinsi Labs from time to time to connect with the secure portal. Davinsi Labs cannot verify whether access requests and the use of the Portal are legitimate and decline any responsibility for any consequences resulting from fraudulent or erroneous access and use. The customer shall immediately inform Davinsi Labs in writing of any changes to the identification data of the authorized persons.
The customer undertakes to use the products and/or services with due diligence, for lawful purposes, and in accordance with the provisions of this Agreement and any documentation provided by Davinsi Labs in relation to the services and/or the products and in accordance with the applicable laws. The customer shall refrain from making (and shall not allow third-parties) any abusive or fraudulent use of the products and/or services. The customer shall use the products and/or services only for his own account. Unless stated otherwise, the use of the products and/or services by the customer are limited to the term of the Agreement. The customer shall not, under any circumstances assign-, transfer-, resell-, rent-, lend -or otherwise make the products and/or services available to third parties without the prior written consent from Davinsi Labs.
Throughout the term of this Agreement and for a period of twelve (12) months following the end of the Agreement, the customer shall not directly or indirectly solicit the employment of, hire or engage as an independent contractor or otherwise, any Davinsi Labs staff (employee, consultant or other) with responsibilities related to this Agreement, without Davinsi Labs prior written consent. Should the customer fail to comply with this obligation, he shall pay Davinsi Labs damages equal to twelve (12) times the gross monthly salary that the person earned with Davinsi Labs in the last full month of his employment, without prejudice to Davinsi Labs right to claim further damages. The non-solicitation provision under this Article does not apply if the Davinsi Labs employee spontaneously applied for employment at the customer, provided that this spontaneous application can be proved.
Where the customer uses or provides Davinsi Labs with third-party information, support or materials, the customer shall ensure that it has appropriate agreements in place with those third parties to procure such information, support, or materials to Davinsi Labs and enable Davinsi Labs to perform the services. The customer shall be responsible for the management of such third parties, the quality of their input and work, and the payment of their fees. Unless other stipulated in the Agreement, Davinsi Labs will not seek to verify, or in any way be liable for, the accuracy of the information, support, or materials provided by such third parties.
DAVINSI LABS RIGHTS AND OBLIGATIONS
Davinsi Labs will use the information provided by the customer in good faith and for the sole purpose of performing this Agreement.
Davinsi Labs reserves the right to take, at any time, on its own initiative and without prior notice, the measures required in case the security, integrity or the proper functioning of its services, networks or infrastructure (or the ones of its subcontractors or suppliers) are or could be compromised. Such measures may consist of, inter alia, the activation of protective measures or the suspension of the customer's access to its services. In no event shall Davinsi Labs be liable to the customer for any and all consequences that would arise from the implementation of such measures.
PRICING, INVOICING AND PAYMENT
The amounts due under the terms of this Agreement will be invoiced: In case of software (license and/or maintenance), in advance before installation or renewal of the software(license), or before activation of the service. In other cases, services will be invoiced on a monthly basis, in arrears. Unless otherwise mentioned on the statement of work and quote or invoice, the payment term is thirty (30) calendar days from the invoice date.
The only valid payment method shall be by bank transfer to the account number specified by Davinsi Labs, citing the relevant reference details and within the due date mentioned on the invoice. The customer shall bear all the costs linked to the payment of the invoice.
The invoice shall be addressed to the customer or to a third party designated by the customer. The designation of a third-party-payer does not exempt the customer from his obligation to pay in case the third-party-payer defaults. The third party-payer shall not acquire any right to the products and/or services.
The customer is not entitled to set off any amounts payable to Davinsi Labs under this Agreement against any possible amounts payable by Davinsi Labs to the customer under this Agreement or any and all other agreements.
In case an invoice is not paid by the due date, the defaulting customer or, where applicable, his designated third-party-payer, will receive a reminder from Davinsi Labs.
In case the payment due date indicated on the reminder is not complied with, the customer shall automatically and without notice be liable for the payment of interest on arrears calculated at the applicable legal rate (in commercial transactions). Davinsi Labs also reserves the right to claim a penalty from the customer amounting to 15% of the invoice total with a minimum amount of 125 euro.
If the Customer makes a partial payment and this payment does not correspond in full to the amount outstanding for the use of the Davinsi Labs service and/or product, Davinsi Labs reserves the right to attribute this payment to any other open invoice.
Any contestation of an invoice must be received by Davinsi Labs within fifteen (15) calendar days of the invoice date. Beyond that deadline, the invoice will be deemed to have been irrevocably accepted by the customer.
Davinsi Labs reserves itself the right to demand that the customer or the company controlling the customer issues a bank guarantee to secure the performance of the Agreement by the customer and/or his affiliates.
Any information that is specifically marked as being confidential or any information which the other party should be reasonably held to be aware of the confidential nature shall be considered confidential information (“Confidential Information”). Each disclosing party’s Confidential Information shall be kept confidential by the recipient and shall not be disclosed by the recipient to any third party without first obtaining the disclosing Party’s prior written consent to such disclosure. In addition, Confidential Information can only be disclosed to staff and/or subcontractors and/or affiliates of the receiving party if such disclosure is reasonably deemed necessary for the performance of the Agreement.
Confidential Information shall remain the property of the disclosing party. Disclosure of Confidential Information does not imply the transfer- or granting of- any intellectual property or industrial right to the recipient.
PROTECTION OF PERSONAL DATA
Davinsi Labs warrants that it complies with the applicable laws on the protection of personal data such as the general data protection regulation (EU Reg 2016/679) as well as applicable national laws on the protection of data personal data (“Data Protection Legislation”).
The services could lead Davinsi Labs to consult, collect and process personal information of, or on behalf of, the customer, its employees, or third parties. In case Davinsi Labs (and its subcontractors) act as the data processor, Davinsi Labs will process this information under the sole instruction of the customer insofar as is required for the performance of the service. Where applicable, the customer shall comply with all the provisions of said regulation and indemnify Davinsi Labs against any claims by third parties based on possible breaches of this legislation.
The ownership and all intellectual property rights to the products and services included in the Agreement (including all data, know-how, databases, results, analyses, information, and/or documents issued or generated by Davinsi Labs in the framework of the Agreement) shall be the exclusive property of Davinsi Labs and/or its Affiliates and/or its suppliers unless otherwise explicitly agreed to in this Agreement. The customer may not claim any right to this intellectual property, nor does he obtain any rights (including access rights) other than those explicitly specified in this Agreement.
The customer shall not reproduce, reverse engineer, decompile, disassemble, alter or change the software or the services or products, nor communicate them or make them available to a third party.
When the service includes software development for the customer, Davinsi Labs while keeping the ownership and property rights of such software development, grants to the customer a non-exclusive, non-transferable, worldwide, and non-sublicensable license to use the software development for its own internal use provided that the customer paid the service fee for the software development. This license is granted as from the acceptance of the software development project and for the period over which an intellectual right protects the software development.
All trademarks, service marks, commercial names, logos, or other words or symbols referring to the products and/or services or to Davinsi Labs business activities in general (hereafter referred to as "the Trademarks") are and shall remain the exclusive property of Davinsi Labs or of its Affiliates or suppliers. The customer shall not commit any act which would pose a threat to these property rights, nor acquire any right to these Trademarks unless otherwise stipulated in the Agreement. The customer shall not remove, modify, or obscure labels, plaques, or other distinctive badges affixed to this product by Davinsi Labs or its suppliers.
LIMITATION OF LIABILITY
Davinsi Labs can only be held liable for damages in the event of fraud or serious misconduct on its part or on the part of one of its employees. In such a case, Davinsi Labs liability shall be limited to repairing only that damage suffered by the customer that was foreseeable, direct, personal, and certain, excluding the repair of any indirect or intangible damage such as additional expenses, loss of income, loss of profits, loss of customers, loss of or damage to data, loss of agreements, damage to third parties, etc.
Neither party is liable for damage resulting from the other party's failure to meet his obligations.
Davinsi Labs’ liability towards the customer per event giving rise to liability shall be limited to a total aggregate amount of 50.000,00 EUR per calendar year. This limitation does not apply in the event of physical injury or death caused by Davinsi Labs.
TERM AND TERMINATION
Unless otherwise stipulated, the Agreement shall take effect on the day that Davinsi Labs accepts the customer's order.
Unless otherwise stipulated, the Agreement shall end automatically:
In case of a project: when the project is accepted by the customer in accordance with clause 9.3 below.
In the case of consultancy: when the outcome of the consultancy is accepted by the customer in accordance with clause 9.3 below.
In case of training: at the end of the training.
In case of license and/or maintenance subscription: the Agreement shall terminate at the time as specified in the license agreement or, in case nothing is determined, after (1) year as from the activation of the license or the maintenance description.
In case of MSP services: the Agreement shall terminate at the time as specified in the MSP services agreement, or, in case nothing is determined, after one (1) year as from the start of the MSP services.
At the expiration of this contractual term, no automatic renewal shall take place.
Davinsi Labs may immediately, without prior court intervention and without being liable for any kind of compensation, terminate the Agreement in case of a serious breach by the customer of its obligations under this Agreement or in case of fraud by the customer.
Acceptance of a project or document issued by Davinsi Labs under this Agreement shall definitively and irrevocably occur or be deemed to occur on the earliest of the following:
Written confirmation by the customer that the performance of the project or the document has been successful (e-mail suffice), or
If no confirmation is provided, five (5) business days after the completion of the project or the issue of the document unless the customer has provided within this five (5) business day period written notice to Davinsi Labs to reject the said project or document. Such notice must be set forth in detail in what way the service fails to satisfy the level of performance required. Parties will use all reasonable efforts to remedy any reported and accepted problems and rerun the acceptance procedure as soon as possible, or
Full payment of the final invoice related to the project or consultancy by the customer.
To the maximum extent permitted by law, the Agreement shall automatically be terminated if either party ceases its activities, becomes insolvent or goes into bankruptcy, is dissolved, or undergoes a similar procedure.
When the Agreement includes license and/or maintenance of software, upon the termination of the Agreement, the customer shall stop using the software, destroy all documentation received from Davinsi Labs along with any copies, including partial copies, of the software made available to the customer in the framework of the service. The customer shall certify that the software has been purged from all devices, computer memories, and storage devices within the customer’s control and that the documentation has been destroyed.
PRODUCTS AND SERVICES
The customer shall not under any circumstances transfer, modify, sell, (sub)lease, lend products out, offer them as a service or make them available to a third party in any way without the prior written consent of Davinsi Labs.
The customer will be held liable for any loss of- or damaged goods belonging to Davinsi Labs and/or its Affiliates and/or suppliers which are in his possession or under his control, or for any damage caused by these goods (except where any such loss or damage is entirely attributable to an act or omission by Davinsi Labs).
In the event of seizure of, or any other claim that a third party may assert on, the product, the customer shall be required to oppose this and inform Davinsi Labs immediately to enable the latter to safeguard its rights.
When Davinsi Labs provides the customer with software, the software is licensed by a supplier of Davinsi Labs directly to the customer (hereinafter the “Licensor”). The customer hereby explicitly acknowledges that all such software contains technical and confidential data that are the property of the Licensor. By executing the Agreement, installing the software, or using the service, the customer accepts the relevant End User License Agreement (hereinafter “EULA”) linked to the software if any. Acceptance of a EULA creates a binding agreement between the customer on the one hand and the licensor on the other hand. The customer acknowledges and accepts that Davinsi Labs does not provide any warranty, indemnity, and/or compensation for the performance, use, or quality software and expressly declines any liability regarding the quality, use, and performance of the software provided under the EULA.
The software development licensed hereunder shall be provided in object code format and ‘as is’ without warranty of any kind.
The customer understands that the maintenance of the software development is not included in the service.
OBLIGATION OF MEANS
Davinsi Labs gives no guarantee on the ability of the services to detect all possible security vulnerabilities related to the customer’s infrastructure or protect against all security threats. Davinsi Labs is subject to an obligation of means in this respect.
Customer may order certain training services from Davinsi Labs in which case the content of the training is described in the applicable statement of work. Davinsi Labs may modify the content of the course, provided that the objective of the course is not adversely affected. Subject to giving reasonable notice, Davinsi Labs may also change the dates, time(s) and location(s) of the courses agreed upon between the parties.
The courses take place on the customer’s premises. The customer agrees to provide the infrastructure required to run the course efficiently and effectively. This includes, but is not limited to, ensuring that presentation materials such as beamer and workstations along with all the requisite online connections, work properly.
If the training is entrusted to a third party, Davinsi Labs is free to choose the instructor or subcontractor.
In case the instructor is ill, Davinsi Labs is entitled to reschedule the training course, without being liable for any compensation.
The customer acknowledges that it is strictly prohibited to reproduce the training documentation and/or training software. It is also strictly prohibited to make the documentation or software available to third parties in any form whatsoever. Said software may not be kept after the course for any reason whatsoever.
GOVERNING LAW AND DISPUTE RESOLUTION
This Agreement is governed by Belgian law. In the event of a dispute that cannot be settled amicably, the courts of Antwerp shall have sole jurisdiction.
Davinsi Labs shall not be held liable for any delays or shortcomings in the provision of its products and or services whenever these are the result of events or circumstances that are beyond its control, unpredictable or unavoidable, such as acts of war, disturbances, civil unrest, embargoes, explosions, bankruptcy of a licensor or a supplier, strikes or labor conflicts (including those involving its employees), cable cuts, power blackouts, extreme weather.
Should these events or circumstances of force majeure become definitive or continue for more than three (3) months, either party may lawfully and in writing terminate this Agreement without any compensation being due.
Should one or more provisions of the Agreement be found to be invalid, unlawful or unenforceable, such provisions shall be construed in a manner consistent with applicable law to reflect as nearly as possible the original intentions of the Parties, and the remaining portion of such provisions shall remain in effect.
Unless the customer explicitly requests otherwise, Davinsi Labs shall be entitled to use the Agreement as a reference for its commercial activities.