General Terms of Business - Alpha Omega Direct BVBA
Article 1. Applicability
1.1. Unless otherwise stipulated in an agreement signed by both parties, the legal relationship between Alpha Omega Direct BVBA (hereinafter referred to as “AOD”) and the Client is exclusively governed by these General Terms of Business and by the additional Special Conditions agreed upon between the parties, hereinafter collectively referred to as the “Agreement”.
1.2. In the event of inconsistencies between these General Terms of Business and the Special Conditions, the latter shall supersede.
1.3. The Agreement cannot be tacitly deviated from by any means whatsoever (a. o. by reason of a particular behaviour).
Article 2. Definitions
2.1. AOD: the BVBA Alpha Omega Direct with registered office in 2000 Antwerp, Zwartzustersstraat 29 and with enterprise number 0818.173.026, RPR [Register of Legal Entities] Antwerp.
2.2. Client: the natural or legal person AOD concludes the Agreement with.
2.3. Public Official: the public officials, in Belgium at present any notaries and judicial officers who use their powers, as for judicial officers in virtue of article 516, second paragraph of the Judicial Code, to, via the TTPO Product, attest (the use of) electronic documents in general, and the electronic traffic of documents and data in particular, including their storage (article 1915 et seq. of the Civil Code). The Public Official is the executive agent of AOD.
2.4. Services: the services AOD provides exclusively through the intermediary of a public official and using the TTPO Product in the context of this Agreement, as further described in the Special Conditions. These services are provided under the commercial name Trusto or under any other commercial name AOD has authorised in the course of its collaboration with its partners.
2.5. Trusted Mail: the multi-channel electronic message that is sent and stored using the TTPO Product.
2.6. TTPO Product: the hardware and software solution which, through the exclusive intermediary of the Public Official, facilitates the attesting of (the use of) electronic documents in general, and the electronic traffic of documents and data in particular, including their storage, inter alia on the basis of the IATIS principle (Identification, Authentication, Timestamping, Integrity and Storage).
2.7. User: the persons the Client has authorised to use the Services.
Article 3. Quotations and conclusion of the Agreement
3.1. Unless otherwise stipulated in the quotation, quotations are issued free of charge and remain valid for 30 calendar days. Quotations shall be regarded as an offer on the part of AOD, are non-binding on AOD, even if accepted by the Client. Any agreements concluded between the Client and AOD are exclusively governed by the provisions of the Agreement.
3.2. AOD assumes that the information and any other data the Client provides are accurate and uses them as a basis for its quotation. AOD assumes no liability for whatever damage that may be caused by the fact that the data the Client furnished are incorrect or incomplete.
3.3. The Client confirms that, prior to the conclusion of the Agreement, it was informed of:
a) The specific ways to use and the conditions of use of the Services;
b) The functioning and accessibility of the Services;
c) The security measures taken;
d) The procedure for notification of incidents, complaints and dispute settlement;
e) The guarantees offered;
f) The scope of AOD’s liability;
g) The scope of AOD’s insurance cover;
h) The Services’ exact uses and conditions of use, including the applicable restrictions for their use, in particular as far as the legal consequences associated with the Services are concerned;
Article 4. Object
The object of the Agreement is clearly defined in the Special Conditions and comprises the Services specified therein.
Article 5. Duration
5.1. The Agreement is concluded for an indefinite duration or for the duration specified in the Special Conditions.
5.2. The Agreement is concluded and comes into effect once the public official appointed by AOD has confirmed that the Client can be supplied with the Services.
5.3. Agreements concluded for an indefinite duration can be terminated by either party by Trusted Mail at any time, for any reason and without giving rise to the payment of compensation, subject to the other party being issued with 5 working days’ notice which begins on the day after the date at which the Trusted Mail was sent to the other party.
5.4. Fixed-term agreements automatically and ipso jure come to an end at the end of the day the Agreement expires.
5.5. However, AOD is entitled to terminate any fixed-term Agreements by Trusted Mail at any time, subject to issuing the Client with one month’s notice which begins on the day after the date at which the Trusted Mail was sent to the Client. The Client is not entitled to any compensation in cases where AOD avails of this option to terminate the Agreement.
5.6. The Client is entitled to terminate the fixed-term Agreement early by Trusted Mail addressed to AOD, subject to giving AOD three months’ notice which begins on the day after the date at which the Trusted Mail was sent to AOD. If the Agreement is terminated in implementation of this paragraph, AOD will be entitled to compensation from the Client, fixed at a flat rate of 30 % of the price for the remaining contract term, with a minimum amount equal to the price over three months
5.7. AOD is entitled to terminate the Agreement by Trusted Mail with immediate effect and without the Client being entitled to compensation in cases where:
- The authorisation or registration required for the activities or professional activity pursued by the Client or AOD is revoked, suspended or not extended;
- The chances of the Agreement running its normal course are compromised in such a way that AOD has genuine reasons to believe that the Client is unable or will no longer be able to perform its undertakings under this Agreement, among which its payment obligation.
- The Client or a user fails to abide by the obligations under the Agreement, such as, though not limited to, the Client defaulting on its payment obligations under the Agreement or on any other agreement with AOD.
5.8. Where an Agreement of an indefinite duration is terminated pursuant to article 5.7, AOD shall be entitled to compensation from the Client fixed at a lump sum of € 500, without prejudice to AOD’s right to claim higher damages. If the fixed-term Agreement is terminated pursuant to article 5.7, AOD shall be entitled to compensation from the Client, fixed at a flat rate of 30 % of the price (see Article 6) for the remaining contract term, with a minimum amount equal to the price over three months, without prejudice to AOD’s right to claim higher damages.
5.9. The Client is entitled to rescind the Agreement for fault of AOD, without being entitled to compensation, in cases where AOD defaults on its essential undertakings under this Agreement and fails to forthwith (i.e. within a maximum of thirty (30) calendar days) remedy the breach of contract on receipt of the Client’s Trusted Mail to AOD, containing a reference to this article.
Article 6. Price
6.1. The Services are supplied at the price specified in the Special Conditions (hereinafter referred to as the ‘Price’).
6.2. The Price is exclusive of VAT, taxes, levies and charges.
Article 7. Payment
7.1. Without prejudice to the right on the part of AOD to request an advance on the Price or any other type of guarantee, AOD shall invoice the Price on a periodic basis.
7.2. Unless otherwise specified on the invoice, the Client shall settle the Price by bank transfer into the account number specified on the invoice, quoting the reference number on the invoice, on the date at which the invoice is issued.
7.3. The Price shall not be deemed to have been paid until such time as AOD has actually received it.
7.4. If the Price is not settled in full on the due date specified in article 7.2, the Client shall, without prior formal notice, be liable for default interest as set in accordance with the Act on combating late payment in commercial transactions, on the amount outstanding and this as of the day after the maturity date until the date of full and final payment. Furthermore, in the aforementioned case, the Client shall immediately and without prior formal notice be liable for flat-rate damages of 15 % of the outstanding balance with a minimum of 125 Euro per invoice. These flat-rate damages are designed to cover AOD’s administrative costs and do not in any way detract from AOD’s entitlement to litigation expenses.
7.5. In the event of default, bankruptcy, dissolution, liquidation, a summons to appear before the court for late payment, the opening of a file with a firm that identifies businesses in financial difficulties, or the Client’s obvious insolvency, or the sale, transfer, relocation to another country, the pledging or contribution of the Client’s business assets or equipment to a company, all the amounts outstanding shall fall due immediately and without prior formal notice. In these cases, AOD shall also be within its rights to terminate the Agreement with immediate effect and without prior notice in accordance with article 5.7 of these General Terms of Business and with entitlement to the damages provided for in article 5.8.
7.6. If, at the time of ordering, the Client asks that the invoice be issued to a third party the Client shall remain jointly, severally and indivisibly responsible for the performance of all the undertakings, including the payment obligations, in spite of the invoice having been issued in the name of a third party.
Article 8. Guarantee
At the time of contracting, AOD is free to ask the Client for a guarantee and/or an advance on the Price. Once the Agreement has come to an end, this guarantee and/or advance shall be credited to the invoice or paid back once AOD has established that the Client has met its obligations, including its payment obligation, failing which this guarantee or advance shall be retained by AOD, whether in full or in part.
Article 9. Obligations and liabilities of AOD
9.1. In terms of the provision of the services, AOD is bound by a best endeavours obligation. AOD will deploy all reasonable resources to ensure smooth access to, the security, reliability and proper functioning of the Services with as few interruptions as possible. However, the Client is reminded that, when using the Internet or similar networks, disruptions and/or the unavailability of connections to the public Internet and/or other telecommunication networks may affect the use of some Services.
9.2. In the event of disruptions, AOD undertakes to take any and all reasonable measures to contain the prejudice sustained by the Client.
9.3. Taking into account the current state of technology, AOD undertakes to deploy all reasonable means to ensure that the data transmitted via the TTPO Product used by the Public Official are secured and to prevent that they are altered, damaged or accessed by unauthorised third parties.
9.4. AOD shall not assume any liability for whatever prejudice the Client may sustain as a result of external factors and/or actions by the Client, such as, though not limited to:
- Malfunctions or quality deficiencies in third-party networks and systems used by AOD or the Client;
- Measures imposed by Belgian or International authorities;
- Loss of enjoyment caused by typical maintenance, improvements and/or upgrades to the network, the terminal or other installations of AOD or its contracting parties;
- The poor or incorrect use of the Services on the part of the Client;
9.5. AOD is not responsible for whatever indirect and/or consequential losses the Client may sustain in virtue of the Agreement, such as, though not limited to, the loss of profit or turnover, an interruption in the activities, etc.
9.6. AOD is not responsible for the content, the integrity or the accuracy of the data the Client transmits via the Services or for the information supplied by third parties or made accessible via the Services.
9.7. Cases of fraud or serious negligence on the part of AOD or one of its service providers or members of staff excepted, and without prejudice to the applicable mandatory statutory provisions, the liability of AOD shall in general, and in respect of each issue it could potentially be held liable for, be limited to an amount of € 5,000 per claim.
9.8. AOD confirms that it has taken out the necessary insurance policies to cover any liability it may incur in virtue of this Agreement and within the limits of article 9. AOD also points out that the Public Official it calls on to facilitate the performance of the Services is insured for professional liability.
Article 10. Intervention of the Public Official
10.1. The Client recognises that the intervention and cooperation of a Public Official is essential and necessary to facilitate the provision of the Services and hereby explicitly asks AOD to appoint a Public Official. However, the foregoing does not detract from the fact that AOD concludes the Agreement with the Client and, accordingly, that only AOD is responsible vis-à-vis the Client, this without prejudice to the provisions of article 10.4.
10.2. In principle, the Public Official is designated and appointed by AOD. At the Client’s request, AOD shall communicate the identity of the Public Official to the Client. However, the Client does have the option to appoint a Public Official itself provided that the Public Official agrees to the terms and conditions governing the use of the TTPO Product as set out in the Agreement to be concluded between AOD and the Public Official.
10.3. Pursuant to the terms and conditions set out in the Special Conditions, the Public Official’s use of the TTPO Product entails that he is tasked with a) checking and attesting the identity of the sender, b) logging, storing and, if necessary, attesting the Client’s electronic transactions, c) the safekeeping of the electronic documents and data and d) the sealing of the content of the documents transmitted via the TTPO Product.
10.4. The personal data referred to in article 10.3., including the electronic data, are exclusively stored in the databases of the Public Official. Solely the Public Official is responsible for the processing of these data and the associated data files are stored at the Public Official’s. The processing of these data is governed by the Data Protection Act of 8 December 1992 and the Act of 15 May 2007 establishing the legal framework for some trust service providers. These data are processed to ensure the proper performance of the Agreement. Where necessary in the context of the performance of the Services, solely the Public Official shall take cognisance of the data.
10.5. Subject to a dated and signed request being sent to the Public Official, the Client can have access to the data relating to it and stored in the files of the Public Official.
10.6. In the context of their statutory obligation to assist the judicial authorities, Public Officials reserve the right to pass on certain personal data to the authorities or to competent persons.
10.7. By communicating its personal data, the Client expressly authorises the Public Official to process them as described above and for the afore-described purposes.
Article 11. Prudent use by the Client
11.1. The Client undertakes to use the Services as a reasonably diligent user, in compliance with the Agreement, the applicable statutory provisions, the principles of public policy and morality. The Client is responsible for the security of its installation. It shall ensure that no other person has access to the Services without its permission. On no account shall AOD be held responsible for the internal user management of the Services at the Client’s.
11.2. The Client is not permitted to use the Services to engage in acts of wrong-doing or disseminate illicit information, to interfere with the proper functioning of the Services, to jeopardise the capacity of the services for other users, to interfere with the integrity of the computer data or to destroy them, to send out large, unsolicited quantities of information with the same content (spamming), to harass people or to disseminate pornography, texts or images of a racist nature, material that is contrary to morality or which incites crime or lesser indictable offences, encourages unlawful gambling or betting, etc.
11.3. The Client undertakes to respect all the intellectual property rights that may be associated with the Services and the data that are processed in the context of a Service. In this respect, AOD hereby informs the Client, who accepts, that all the intellectual property rights, among which the trade names, logos, names and brands AOD uses in the context of the Services, are protected and that the Client is not at liberty to use them except with the express prior consent of AOD.
Article 12. Personal data communicated to AOD – Protection of privacy
12.1. Any data of a personal nature, including electronic data (e.g. email address) the Client communicates to AOD or AOD assigns to the Client are stored in the AOD databases. AOD is responsible for the processing of these data and the associated data files are stored at the registered office of AOD. The processing of these data is governed by the provisions of the Data Protection Act of 8 December 1992. These data, which may be shared with other companies of the group AOD forms part of and/or with companies AOD has concluded a contract for the supply of services with, are processed for the proper performance of the Agreement. Any of the Client’s personal data the Client communicates to AOD are also processed for client management purposes (such as the issuing and sending out of invoices, the follow-up, receipt, checking and, if necessary, the collection of payments, dispute management), and for the purpose of marketing and market research on the Services. In the latter case, the personal data may be shared with market research firms. Personal data of former Clients can be used for a period of two years after the Agreement with the Client has come to an end to keep the former Client posted on any new AOD products, services and promotions.
12.2. Subject to a dated and signed request being sent to the address of the registered office of AOD, the Client can have access to the personal data relating to the Client and which are stored in the files of AOD and request that they are rectified. In the same manner, the Client can object to its personal data, including its electronic data, being used for marketing and market research purposes.
12.3. In the context of fraud prevention and the prevention of infringements, AOD is free to check the data the Client furnished it with against data that are publicly available, against any data stored in its own files or against the data stored in the files of other companies of the group AOD forms part of or whom it has concluded a contract for the supply of services with.
12.4. By communicating data of a personal nature, the Client expressly authorises AOD to process them as described above and for the afore-described purposes.
12.5. The Client can obtain additional information about the databases, object of the present article, by contacting the Public Register of the Privacy Commission (www.privacycommission.be).
Article 13. Transfer of rights and obligations
13.1. AOD is free to transfer its rights and/or obligations under the Agreement, whether in full or in part, to a third party without the Client’s consent. However, this transfer shall not result in a reduction in the Client’s guarantees.
13.2. The Client is free to transfer its rights and/or obligations under the Agreement to a third party, whether in full or in part, subject to (i) the prior and written consent of AOD, and (ii) both the Client and the transferee having completed the designated AOD transfer form in full and having returned it to AOD, duly signed.
Article 14. Miscellaneous
14.1. The nullity of any one clause of the present Agreement shall not in any way affect the validity of the other clauses. In that case, the parties shall do everything in their power to, by common accord, replace the void clause with a valid clause with the same or a largely similar economic impact as the void clause.
14.2. The Agreement cancels and replaces any written or verbal arrangements, contracts, proposals and undertakings relating to the same object, as described in the Special Conditions, which may predate the date of this Agreement.
Article 15. Applicable law - jurisdiction - disputes
15.1. This Agreement is governed by Belgian law.
15.2. Solely the Courts of Antwerp have jurisdiction to take cognisance of any disputes that may arise.
15.3. The Client can report any disputes and complaints concerning the performance of this Agreement to AOD by Trusted Mail at the address firstname.lastname@example.org. AOD undertakes to resolve any problems it is notified of and is in a position to rectify as quickly as possible.