Version February 2018
HYPERLANE is a commercial offering by Hyperlane NV, a Belgian Private Limited Company with registered office at Kempische Steenweg 293/34, 3500 Hasselt, Belgium.
These terms and conditions apply to all offers and quotes of HYPERLANE, to all agreements concluded by HYPERLANE and to all other activities carried out by HYPERLANE. A summary of these terms and conditions is represented on the backside of the invoices. The special conditions, any service level agreements if agreed upon and other agreements shall take precedence over these terms and conditions. The Dutch version is the original one and takes precedence over the English translation which is informative. The applicability of any purchase conditions or other conditions of the customer is expressly excluded. The customer recognizes to have a minimum knowledge to make use of the offered services and to understand the technical jargon mentioned in the agreements and other documents and, if necessary, to have been informed by HYPERLANE about the current scope of the used jargon
2. QUOTATIONS AND ORDERS
The prices applied by HYPERLANE are always quoted in Euro and exclude VAT and other taxes or levies. HYPERLANE has the right to correct omissions or errors in the quoted prices. Quotations drawn up by HYPERLANE are valid for 2 months, unless otherwise specified. The prices for hardware and software licences may be adjusted at all times if they are changed by the suppliers. The customer’s acceptance is binding upon the customer, but is only binding upon HYPERLANE after its written confirmation. The customer expressly acknowledges that a purchase order or contract sent through the internet, by email or fax has the same value as the original. The start of the works described in a quotation or the use by the customer shall be considered as a confirmation of its contents. The absence of a regular, digital or electronically qualified signature does not prejudice the binding force of the offer and its acceptance.
3. ADDITIONAL WORK/SUPPORT
Any work that is not specifically described in the quotation shall be considered as additional work (time material) and can be invoiced at the applicable hourly rate in addition to the fixed amounts specified in the quotation. The customer acknowledges that the delivered services may comprise the additional delivery of software or data and will automatically download and install updates on irregular intervals when HYPERLANE deems it necessary to enable an optimal service. These updates and upgrades are designed to improve, to further develop the services provided, to remove bugs, to install new versions or to adapt the service to the needs of the customer. They are specific to the nature of the services and necessary for a continuing effective functioning. They are invoiced in accordance to the applicable rates at that time. HYPERLANE will inform the customer to the best of its ability regarding the above and will take into account any finite budgets if the customer makes reservation hereabout. The customer acknowledges that in the event of express refusal of the implementation of updates or upgrades this may lead to the fact that an optimal service cannot be guaranteed and any Service Level Agreements can be void.
The delivery terms specified in quotations are not binding upon HYPERLANE. HYPERLANE shall comply with them to the best of its ability and shall inform the customer in case a delivery term will (probably) be exceeded. HYPERLANE has no liability if the delivery term is not met, unless otherwise agreed in a Service Level Agreement subject to the conditions therein determined. Failure to meet the term shall not be a valid reason for the customer to terminate, dissolve or suspension of the agreement.
5. RISK AND RETENTION OF TITLE
The risk concerning the products and services ordered shall be transferred to the customer at the time of acceptance of the quotation. However, the title to the products and services shall only be transferred to the customer when the price and any late-payment interests and damages have been paid.
All invoices are payable by bank transfer or in cash within thirty days following the invoice date, unless specified otherwise. Unless the Customer can present proof to the contrary, the invoice shall be considered to have been received 5 days after the invoice date. Each invoice that is not protested in a letter sent by registered post within eight calendar days following the invoice date shall be considered as accepted. Any unpaid amount on the expiry date shall accrue interest at a rate of 10% per year, calculated as from the invoice date, automatically and without prior notice of default. In addition, the amount of the unpaid invoice shall be increased by a fixed fee amounting to 10% of the outstanding amount, with a minimum of 100 EUR. Any additional costs incurred for collecting the payment shall be at the customer’s expense.
The Customer shall inspect the services and products upon receipt. Unconditional full or partial commissioning of the materials and/or works by the customer or its authorized representatives shall imply final and irrevocable acceptance of the services and products delivered. Complaints must be filed immediately, within 5 days following delivery. After this term, the delivery shall be considered as accepted.
8. SUSPENSION OF SERVICES
HYPERLANE may suspend the delivery of services and products without giving rise to any liability or entitlement to compensation when the customer does not comply with its obligations (e.g. its payment obligations) within 14 days following receipt of a notice of default or in the case of force majeure. De customer acknowledges that this may result in a considerable damage, but that such damage can never be claimed from HYPERLANE.
9. TERMINATION - DISSOLUTION
9.1. Due to the rapid evolution of technology and the customisation of orders, accepted quotations for hardware cannot be cancelled by the customer. In case a hardware order is cancelled, the quoted price shall be payable in full.
9.2. Online concluded contracts created via an account created on the website concerning off the shelf IT products (products that are purchased from an existing stock) offered by HYPERLANE, can be cancelled from the moment the customer successfully deactivates his agreement through his account, without any additional cost.
9.3. If the agreement, in part or in full, is concluded for a fixed period, early termination is not possible. If no notice of termination is given at least 3 months before the expected end date of the agreement, the agreement shall be automatically prolonged for the same period. In the case of early termination by the customer, the amount specified in the quotation for the entire duration of the agreement shall be payable in full. For licence-, hosting-, platform as a service services and products, the duration of the agreement is linked to the duration of the product, if not expressly agreed.
9.4. Permanent agreements may be terminated by giving 3 months’ notice or by paying a termination indemnity in lieu of notice, which is fixed at the average monthly work billed in the twelve months preceding termination of the agreement or, in case the agreement has not been in force for 12 months, in the months preceding termination of the agreement. Any overdue one-off, monthly or annual fees shall remain payable.
9.5. HYPERLANE reserves the right to dissolve/terminate the agreement unilaterally, at any time and with immediate effect, without giving notice or paying any termination indemnity, amongst others in the following circumstances:
The customer does not comply with one or more of the obligations arising from this agreement, whatever their nature, or does not comply with them in a timely or appropriate manner, and does not remedy this situation within 14 days following a notice of default sent by HYPERLANE or on which there has been no reaction within 5 days.
The services are used incorrectly by the customer, as determined in art. 12, or order of the public authorities
In the case of any type of bankruptcy/judicial reorganisation or suspension of payments:
In this case, the applicable fees as specified in art. 9.1., 9.3, or 9.4 shall be payable, without prejudice to the other provided damages or the right to claim the actual damage suffered.
10.1. The customer is responsible for delivering the right content and for the provision of the IT assets which are needed to provide the agreed services. The customer acknowledges to have received the necessary information about this. Each question of HYPERLANE will be answered within the specified period.
10.2. HYPERLANE shall deliver its services in accordance with best practice, the relevant and applicable rules and regulations and established business practices in the sector. This constitutes an obligation for HYPERLANE to perform to the best of its ability, unless a contrary service level agreement is expressly agreed for certain aspects. HYPERLANE does all the necessary within its best efforts to ensure a fluent service. However, HYPERLANE cannot guarantee that the services will fully meet the expectations of the customer, that they are entirely free of bugs or programming errors or that they will be uninterrupted. Neither can it guarantee that the information that results from the use of services will be reliable or accurate and that every error that may occur in the system can be rectified.
10.3. Possible service level agreements relate to the services, installations, platforms provided by HYPERLANE. In case the time limits specified therein are not met due to an external cause which is not due to HYPERLANE, but e.g. by criminal offence by third parties, problems with suppliers, government actions, misuse by the customer or third parties, etc ..., the terms specified therein shall not apply.
10.4. The services and products delivered by HYPERLANE are subject to the legal provisions concerning the guarantee for hidden defects. The compensation payable in the context of this guarantee shall never exceed the amounts invoiced to the customer for these products and services, even not after potential dissolution of the contract. The guarantee does not apply if the services and/or products were manipulated by the customer or by a third party.
10.5. HYPERLANE is not liable for any loss, theft, depreciation or damage resulting from adjustments or manipulation to materials or works delivered to the customer.
10.6. HYPERLANE can only be held liable for direct and immediate damage caused by a serious error in performing the services or delivering the products and only if this damage falls within the liability and guarantee conditions of its suppliers or subcontractors or the coverage limits of its liability insurance policies. HYPERLANE has no liability for consequential or indirect damage, including due to data loss, data recovery, lost profits, turnover or other financial and commercial losses, unless they are covered by the liability and guarantee conditions of its suppliers or subcontractors or fall within the coverage limits of its liability insurance policies, notwithstanding the possible dissolution of the contract.
10.7. Unless expressly agreed otherwise, the customer remains responsible for its network security, observance of instructions provided by HYPERLANE or its suppliers on the use of the services and products delivered and for correct maintenance of the products and services delivered, as well as for providing all correct information and accommodation HYPERLANE may require to complete its work correctly within the time period set by HYPERLANE. HYPERLANE reserves the right to invoice the customer for any delay in the works or any additional work that may be required in accordance with the current rate at that time.
10.8. The customer shall indemnify and hold HYPERLANE harmless against any violation of the rights of third parties, insofar as these violations are not caused by HYPERLANE’s services.
11. Additional conditions
Additional conditions, valid for domain-, site-, (multi) server or application-hosting and platform as a service services:
11.1 The customer will request, own and maintain at its own costs the authorizations, licenses and registrations and/or permits, which are necessary to conduct his business and to use the Services, in case they are not supplied by HYPERLANE. The customer will respect the conditions mentioned in such authorizations, license or permit and will permanently compensate and indemnify HYPERLANE against any claim from third parties regarding any damages, losses or costs due to the non-fulfilment by the customer of the obligations mentioned above. The customer must have an active e-mail address. HYPERLANE and the customer will use this e-mail address for all official communication between them, and the customer must keep this address up to date.
11.2. The customer remains at all times responsible for the information and data available on his site, server(s) or application. If it appears that these don’t comply with the applicable Belgian law, or that they endanger the services of HYPERLANE, HYPERLANE has the right to take offline the site, server(s) or application of the customer. The customer shall indemnify HYPERLANE for all legal claims related to placed data (texts, photos, graphic designs, video- and audio material, etc.).
11.3. The customer shall always inform HYPERLANE about planned maintenance which could disable, interrupt or in any way interfere with Services supplied by HYPERLANE. The customer will inform HYPERLANE about the start and end time of the maintenance. During the maintenance provided by the customer; there is no guarantee or warranty applicable regarding the services or any Service Level Agreement.
11.4. The customer shall preserve all identification information (login names, passwords, etc. ), address data, codes, etc… with the utmost care. Identification data, address data, codes etc… may not be shared with any other party without the express prior consent of HYPERLANE. The customer is responsible and liable for any misuse of the identification data which belongs to the customer, regardless of the identity of the misuser.
11.5. The HYPERLANE helpdesk is available for problems or basic advice. The customer is assumed to have a minimum knowledge to use the applications, software and platforms supplied by HYPERLANE.
11.6. Unless otherwise agreed, the customer is responsible to keep the used applications safe, up to date and spam free. If the customer fails to do so, and the services of HYPERLANE to the customer or any third party are endangered or in case HYPERLANE has to intervene due to any legal reason (e.g. intrusion attempts, massively send spam, participation of botnets, ...), HYPERLANE can claim payment for the costs incurred. If recovering and defusing is not possible, HYPERLANE can make the domain name, website or server inaccessible, without compensation for the customer.
11.7. The installations and equipment supplied by HYPERLANE are subject to maintenance work including amongst others: adjustments made necessary by the technological developments, failure or delay caused by any cause outside the control of HYPERLANE. The customer acknowledges that necessary maintenance work or delivery of services may result temporarily not having access to data, passwords, business information etc.. without compensation.
11.8 If there is a deviation of the Service(s) - as normally supplied - (hereinafter referred to as an "Event"), the customer is obliged to inform HYPERLANE as soon as possible. If it seems that any Event is caused by the customer or a defect of any equipment managed or used by the customer or on its behalf, HYPERLANE will notify and inform the Customer, if possible, about the possible cause of the Event. Immediately after receiving this information, the customer shall take, at its own expense, all possible reasonable measures to correct the defect that causes or could cause the Event. If HYPERLANE ascertains that an event was caused by another customer or by a defect of any equipment managed or used by another customer or on its behalf, we will pass this information to such other customers and ask them to take appropriate measures, at their own expense. Under no circumstances, HYPERLANE can be held responsible towards the customer for such an Event.
11.9 Any damages arising out of any breach by the Customer of article 11.1. to 11.8. can be claimed by HYPERLANE, including the additional services and will be invoiced to the current rates at that time. HYPERLANE also reserves the right to consider the agreement as terminated as per art. 9.5.
12. CONDITIONS OF USE
The Customer has to fully indemnify and compensate HYPERLANE if HYPERLANE is held liable by users or third parties in connection with the misuse by the Customer of the platform, installations and services, etc. provided by HYPERLANE. Amongst others, the customer is prohibited to:
disrupt systems in the network
break, remove or evade any protection of website software
damage or overload the equipment, hardware, software, data, or services of third-parties or customers from HYPERLANE, for example by mail bombing, flooding, deliberate attempts to overload a system and broadcast attacks.
use the system for sending, transferring or storing data which infringe any rights of third parties or implies a criminal offence or infringement of mandatory law or public order, or to conduct deceptive online marketing practices.
infringe the privacy of individual users or third parties e.g. by monitoring data or traffic of any network or system without express permission of the owner of the system or the network; by looking deliberately for information about others on the network; by copying or modifying files, data or passwords from others or by acting as another user, unless with the express permission of that user.
introduce viruses or other forms of malicious programs in the network or system.
gain (or attempt to obtain) unauthorized access to systems or networks, including any attempt to probe, scan or test the vulnerability of a system or a network, or to break security or authentication measures without express permission of the owner of the system or network.
HYPERLANE reserves the right to investigate, inspect, identify, filter, modify, refuse or to delete the content provided by the client. In case of infringement, HYPERLANE reserves the right to suspend all services immediately and consider the agreement ended cfr. Art. 9.5., without prior notice. In that case, HYPERLANE is entitled to a compensation of 15.000 EUR, without losing the right to claim the actual damages.
13. CONFIDENTIALITY and PRIVACY
All information exchanged between the parties that is not public shall be considered as confidential. Neither party shall disclose this information to third parties without the prior written consent of the other party, unless any binding request of the government.
14. INTELLECTUAL PROPERTY
The customer keeps all intellectual property regarding the data and the content placed and saved by the customer on the systems and products supplied by HYPERLANE. Unless otherwise agreed upon, Intellectual Property (such as Copyrights, trademarks, patents, drawings and models, knowhow, semiconductor topographies (“chips”), databases, etc.), in the broadest sense of the term, arising from the services delivered by HYPERLANE shall remain the property of HYPERLANE, irrespective of the delivery or payment of the services. The products delivered by HYPERLANE may never be leased, sold, brought into the public domain, marketed etc. without its explicit written consent. The customer declares to have read the licensing conditions related to the software delivered by HYPERLANE and confirms to have accepted them.
Failure to exercise a right by HYPERLANE shall not constitute a waiver of this right.
16. FORCE MAJEURE
All situations of force majeure as per article 1148 of the Belgian Civil Code shall release HYPERLANE from any obligation to comply with the agreement, without creating any right to compensation. Force majeure situations shall include government actions, illness or death of one of HYPERLANE’s employees, bankruptcy or judicial organisation of one of the parties, operational failures due to fire, weather conditions, natural disasters, technical failures, lockout, strike, riots, mobilisation, war, non-performance or force majeure situations with subcontractors or suppliers, technical disruptions, etc. If the situation of force majeure exceeds or is likely to exceed 10 working days, HYPERLANE shall have the right to terminate the agreement with immediate effect by operation of the law, without applying to a court and without creating any right to compensation. HYPERLANE reserves the right to claim payment for all products or services that have already been delivered and for the costs incurred for the purpose of future performance of the agreement. In case HYPERLANE fails to comply with its contractual obligations due to force majeure, such non-compliance shall never constitute a valid reason for the customer to terminate, dissolve or suspend performance of the agreement.
If one or more provisions in the special conditions and/or terms and conditions should be invalid, this invalidity shall not affect the other provisions of the agreement. In this case, the invalid provision shall be disregarded for the interpretation of the agreement.
18. JURISDICTION AND APPLICABLE LAW
All agreements between HYPERLANE and the other party shall be governed by Belgian law. The Peace Court of Sint-Truiden and the courts of the judicial district of LIMBURG, Hasselt section, shall have exclusive jurisdiction over any disputes arising from this agreement.