Article 1. Parties
1.1 DIRECT is the company in the form of a BV with registered office at 9600 Ronse, Oscar Delghuststraat 60, registered in the trade register of the Enterprise Court ghent, department Oudenaarde under CBE no. 0524.911.738 ([email protected])
1.2 The Client is any natural or legal person who calls on services from DIRECT in the context of his professional activities.
1.3 DIRECT and the Client are hereinafter referred to as “Party” or jointly as the “Parties”.
Article 2. Applicability
2.1. By signing the Offer offered by DIRECT, the Client declares that he has taken note of the General Terms and Conditions and acknowledges to accept these General Terms and Conditions.
2.2. Direct’s General Terms and Conditions apply to all offers, performances, agreements and services of DIRECT, unless expressly agreed otherwise in writing.
Unless otherwise agreed in writing, the Client, by accepting these General Terms and Conditions in accordance with Article 2.1., fully waives the application of its own general (purchase) conditions.
2.3. After timely signature of the Quotation by the Client, DIRECT is obliged to execute the Assignment described in this Offer, in accordance with the modalities as determined in the Offer and the general terms and conditions. The provisions of the Offer and those of these general terms and conditions destroy and replace all other provisions, conditions, agreements, agreements, correspondence and /or previous agreements. In the event of a conflict between the provisions in the Offer and the General Terms and Conditions, the content of the Offer shall be; supersedence over these General Terms and Conditions.2.4. The Client cannot transfer or pledge the rights and obligations arising from this Agreement to third parties, either in whole or in part, without the prior written consent of DIRECT.
Article 3. Quotation and conclusion of agreement
3.1 Quotation – After oral or written request by the Client and on the basis of the information communicated by the Client to DIRECT, DIRECT draws up a quotation (hereinafter the “Quotation”). Unless otherwise stated on the Offer, the Offer is valid until 15 days after the quotation date.
The Offer contains a price proposal, a concrete description of the services and, if applicable, the specifications, the modalities and the duration of the Assignment.
3.2 Execution period – The execution period provided for by DIRECT is purely indicative. DIRECT undertakes to observe the agreed deadlines to the best of its ability.
3.3 Information – The Client guarantees the completeness of the information that he communicates to DIRECT and on the basis of which DIRECT draws up its Offer. DIRECT may rely on the accuracy and completeness of the information provided by the Client.
3.4 Agreement – By signing the Offer, the contract between the parties is concluded in accordance with the modalities provided for in the Offer and these General Terms and Conditions, including the Processor Agreement in Appendix 1.
In that case, the Client acknowledges that the assignment described in the Offer (hereinafter the “Assignment”) corresponds to the information that he has communicated to DIRECT prior to DIRECT regarding, among other things, the intended purpose, his wishes and preferences regarding the modalities and duration, etc. DIRECT cannot be held liable for the incorrect execution of the services if such execution was caused by an incorrect, incomplete or late provision of information by the Client. Nor is DIRECT liable if it subsequently appears that the Client does not use certain hardware or software or if it does not meet certain needs of the Client. DIRECT undertakes to inform the Client to the best of its ability when discussing the Offer, without this possibly jeopardizing its liability.
If the execution of the assignment must be suspended due to the lack of the necessary information from the Client, an amount may be charged in function of the work already carried out.
3.4 Advance – After signing the Offer, the Client owes an advance as stipulated in the Offer. This will be invoiced by DIRECT to the Client. The Client is obliged to pay the advance before immediately commences the Assignment.
3.5 Changes – During the execution of the Assignment, the Client is free to propose changes and corrections. Changes must always be confirmed in writing between DIRECT and the Client. Changes can always give rise to a price adjustment.
3.6 Additional works – If a request for change, correction or addition implies an extension of the Assignment, and DIRECT is willing to carry out the requested additional work, DIRECT is entitled to invoice these additional works separately. These additional works will be invoiced additionally at the hourly rates of DIRECT applicable at that time, unless otherwise agreed.
3.7. Cancellation of the Quotation by the Client – If the Client cancels his order before the Assignment has been fully executed by DIRECT, DIRECT is entitled to compensation that consists at least of (1) the costs that DIRECT has already exposed with a view to the execution of the Assignment, both those of employees and third parties, (2) the cost of the cancellations of the orders and assignment for which DIRECT is obliged by third parties, and (3) a loss of profit compensation equal to 10% of the total amount to which DIRECT would have been entitled in the event of full performance of the Agreement.
3.8 Processor Agreement: the appendix to these general terms and conditions in which the conditions are included in accordance with which DIRECT as processor will process personal data on behalf of the Client, acting as controller.
Article 4. Price and costs
4.1 Price – The price is as stated on the Offer or in the Agreement. Any discount granted is a one-off and does not create any rights for the future.
All prices are exclusive of VAT and are calculated in euros.
4.2 Costs – In addition to the price or rates for substantive performance and costs agreed in the Quotation, DIRECT will charge the following costs separately, unless otherwise agreed in the Offer:
- travel expenses of DIRECT employees: These are settled at the following rate: € 1.5 / kilometer. This includes both the transport costs and the travel time of the employee.
- transport costs of hardware to the place where it must be installed: These are settled at the following rate: € 1.5 / kilometer. This includes both the transport costs and the travel time of the carrier.
- Hardware and Software
For the hardware and software not developed by DIRECT, DIRECT charges an advance of 50% of the total amount. This is done upon acceptance of the Offer. The remaining balance will be invoiced after delivery, in accordance with the terms of the Agreement.
– the installation costs of hardware and software: These are invoiced at the hourly rates of DIRECT applicable at that time;
– all intervention costs for hardware and software problems: These are invoiced at the hourly rates of DIRECT applicable at that time;
Interventions of third parties (for hardware or software), such as support for own IT programs, electricians, etc., are never included in the Offer, unless explicitly stated otherwise.
4.3 Services under direction – services under direction are charged by DIRECT at the end of the month, per billing unit of each 15 minutes started. Interventions on location are charged by DIRECT at the end of the month, per billing unit of each started 15 minutes with a minimum of 2 hours. In case of a late cancellation of the customer (less than 4 hours) of scheduled interventions on location, 2 hours will be charged.
4.4. Services outside office hours – A surcharge of 50% is due for work carried out outside office hours (i.e. before 8.00 am, after 5.30 pm) and on Saturdays. This surcharge is increased to 100% for works or public holidays and Sundays.
4.5 Price revision – for agreements that exceed the duration of one year, DIRECT has the right to index the prices (including the costs as described in articles 4.2 and 4.3) every year, with effect from 1 January following the year in which the Agreement was concluded. The price revision shall be carried out according to the following formula: P = P0 x [(0,80 x i/I) + 0,20], where:
- P = Revised price;
- P0 = The price set forth in this Agreement;
- I = the wage index agreed in the Joint Committee 200 applicable in the month of December preceding the effective date of the Agreement;
- i = the wage index agreed in the Joint Committee 200 applicable in the month of December preceding the anniversary of the Agreement.
This price revision is calculated in the invoicing of the first quarter.
4.6 Price adjustments – for prices where DIRECT is dependent on its suppliers, such as license prices on Microsoft products, DIRECT may at any time pass on the price adjustments of its suppliers to its Client. The same applies to taxes, such as but not limited to Recupel, Auvibel, Bebat, Reprobel, which are always at the expense of the Client. The Client acknowledges and accepts that the reasons for price adjustments mentioned in this article are valid reasons to change the prices, without prejudice to DIRECT’s right to adjust the prices annually for any other valid reason, which will be communicated to the Client in advance.
Article 5. Delivery
5.1. Delivery of goods to the Client – Goods delivered directly to the Client’s address will be checked for packaging and content immediately upon receipt to determine all visible defects. The Client also checks the conformity of the delivered goods with the order form and the delivery note. If the Client finds damage or irregularities, he is obliged to refuse receipt of the goods to the carrier, and to inform him immediately. Failing this, the Client only has recourse against the supplier to the exclusion of DIRECT.
Upon receipt of defects that are not visible, must be reported to DIRECT in writing within eight days after commissioning, or after the moment when the defect first manifests itself. After this period, DIRECT can no longer be held liable.
5.2. Delivery to third parties – the Client is obliged to pass on the coordinates of the owner of the good rented by him or the specified place of delivery to DIRECT prior to delivery. The Client guarantees that the delivery can be received and placed, and if necessary ensures the necessary agreements with the owner. DIRECT is entitled to assume that it may carry out the works described in the Assignment at the specified location, and the Client indemnifies it against claims from third parties if this permission would be incomplete or defective. The Client informs the recipient of the goods of the provisions of art. 5.1, for which the Client remains bound with regard to DIRECT.
5.3 Ownership designation – In the event of leasing or rental, the Client will at all times ensure that the ownership indications on the hardware are not removed. The Client is not entitled to pledge, pledge or grant other security rights to third parties the hardware leased or rented under retention of title. The Client is obliged to inform IMMEDIATELY if the leased or rented hardware has been seized or if a third party has otherwise disposed of this.
Article 6. Payment
6.1 Invoicing –
Services at a fixed price
Projects at a fixed price are invoiced for 100% at the time of ordering.
For contracts with a monthly fee less than € 250.00 (excl. VAT), invoicing is done annually in an anticipatory manner at the beginning of the year. For contracts with a monthly amount equal to or greater than € 250.00 (excl. VAT), invoicing is done monthly in an anticipatory manner at the beginning of the month. The selling prices of the software licenses are subject to price changes due to shifts in the licensing strategy of third parties.
Services other than those mentioned above are invoiced at the end of each month.
6.2 Payment – All invoices are payable no later than 30 days after the invoice date at the registered office of DIRECT, unless otherwise agreed. Payments shall be made in euro.
In the event of non-payment of an invoice on the due date, all outstanding invoices and debts against the Client shall become due and payable by operation of law and without prior notice of default.
6.3 Postponement of payment – If DIRECT allows the Client to repay outstanding amounts in different installments, the remaining balance becomes due and payable in full – including conventional interest and compensation – if the Client fails to comply with one term.
6.4 Interest and damages clause – After due date, an annual default interest of 10% is due by operation of law and without notice of default, as well as a conventional and fixed compensation of 10% of the total amount due with a minimum of 200 EUR.
6.5 Late payment by the Client – DIRECT reserves the right to suspend the execution of current Assignments until full payment has taken place, without prejudice to the right to compensation. This suspension starts on the day of notification thereof by DIRECT to the Client, and lasts by operation of law until the date of full payment of the outstanding invoices. The suspension due to late payment does not release the Client from its obligations in the execution of the Agreement.
If the Client fails to pay after expiry of the due date and after expiry of an additional period of fifteen days after having been given notice of default by DIRECT by registered letter, DIRECT reserves the right to cancel the Assignment and Agreement and to invoice all outstanding costs and services, without prejudice to its right to compensation. In particular, DIRECT is then entitled to pass on the costs that it will have to pay to its suppliers in the execution of or in termination of the underlying services of the Assignment. The Agreement will then be dissolved by operation of law and without prior notice of default to the detriment of the Client.
6.6 Protest – Any protest of an invoice must be communicated to DIRECT in writing within fifteen working days after sending the invoice. In the absence of timely protest, the Client is deemed to have definitively and irrevocably accepted the invoice and the goods and services stated therein.
6.7. Retention of title – For hardware and software, ownership only passes to the Client upon payment of the underlying invoice.
Article 7. Execution Term and Termination
7.1 Execution period – Each execution period provided for by DIRECT has a purely indicative character, as provided for in Article 3.2. Delay in execution can under no circumstances give rise to compensation.
In the absence of prompt cooperation by the Client, in the event of force majeure or when the Assignment is changed during its execution, the agreed delivery periods lose their indicative character. The Parties are free to agree on (a) new term(s) if necessary.
7.2 Delay – In the event of abnormal delay in the delivery period, the Client has the right to dissolve the Agreement by registered letter and without judicial intervention. This can not take place earlier than 15 days after registered notice of default in which DIRECT is urged to perform the services, and where DIRECT cannot prove within the aforementioned period of 15 days that the delay is independent of its will or that it itself is dependent on the delivery by a third party.
Where applicable, the Client expressly waives any other possible means of redress, in particular the award of any form of compensation.
7.3 Duration of long-term contracts – The Agreement comes to an end on the end date provided for in the Assignment. The Agreement will be tacitly renewed for a period of one year, can be terminated no later than three months before the new expiry date.
The duration of the Agreement can be adjusted at any time between the Parties subject to written agreement, e.g. as a result of the registration for an additional service by the Client, where an equalization of the term is required for the proper performance of the services.
7.4 Termination by the Client – If the Client terminates the Assignment prematurely during the Agreement, other than as a result of fraud or gross negligence on the part of DIRECT, DIRECT is entitled, unless otherwise agreed, to a fixed termination fee of 50% of the outstanding amount of the remaining Assignment, without prejudice to invoicing for all services delivered and costs incurred up to that point and, if applicable, compensation for actual damage suffered for insofar as it exceeds the termination fee.
7.5 Termination by DIRECT – In addition to the cases for which this is already specifically provided for in this Agreement, DIRECT reserves the right to terminate the Assignment and the Agreement without prior notice of default and without judicial intervention in the event that the Client has been declared bankrupt or has in any other way lost all or part of the management of its assets. Where applicable, the Client is not entitled to compensation.
Article 8. Personnel and subcontractors
8.1 DIRECT can, in consultation with the Client, determine which consultant will be assigned to an Assignment. THE CONSULTANT CAN CHANGE IMMEDIATELY, if she deems it necessary. The Client can ask DIRECT to change the assigned consultant, but DIRECT can decide on this at its discretion.
8.2 The consultants appointed by DIRECT can never be considered as appointees or employees of the Client and work under the authority and direction of DIRECT. The instructions of the Client will be carried out by the appointee within the limits of the previous sentence. The Client undertakes not to exercise any part of the authority of the employer, which belongs exclusively to DIRECT, on direct employees who carry out the Assignment on behalf of DIRECT. However, the Client can give the following instructions:
8.2.1 General instructions and (technical) guidelines to direct’s employees in the context of the execution of this Agreement that are necessary for the execution of the Assignment and that are specific to the Client, in particular:
- instructions regarding the execution of the Assignment, without instructions on how the said result must be achieved;
- instructions relating to the normal working hours of the undertaking, but excluding instructions relating to the rules on working hours, which remain the sole responsibility of DIRECT;
- instructions on the correct use of the company’s machinery, equipment, materials and documents;
- instructions regarding access to the company premises and installations, including instructions to wear a valid pass (badge) and to wear it visibly at all times;
- instructions concerning the specific context and procedures of the company to be taken into account in the performance of the Assignment (e.g. existing health and safety requirements, other ongoing work that determines the schedule of the services, …);
- instructions regarding the delivery period;
8.2.2 Instructions to direct’s employees regarding compliance with the Client’s obligations and responsibilities with regard to the well-being of DIRECT’s employees at work when they are present at the Client’s office.
8.3 When consultants or subcontractors of DIRECT perform services with the Client, the latter is obliged to respect the relevant legislation, and to make every effort that the appointees of DIRECT can perform their work unhindered and undisturbed.
8.4 During the term of the Agreement and up to one year after the termination, none of the Parties shall, without the prior written consent of the other Party, actively, directly or indirectly, recruit the appointees and consultants of the other Party who have been involved in the execution of the Agreement, on pain of payment of compensation equal to the gross annual salary or compensation that one Party has paid for the relevant appointee on the moment of termination of the cooperation was due, including all benefits.
Article 9. Warranty, Indemnification and Liability
9.1 Obligation of means – The Client acknowledges and accepts that DIRECT carries out the Assignment assigned to it in accordance with the agreements made between the parties, to the best of its ability and according to the rules of the art. DIRECT’s commitment is qualified as an obligation of means.
9.2 Warranty upon delivery of hardware and software – DIRECT is at most obliged to the same guarantee, to the same conditions and modalities, as those to which its supplier of hardware and software is bound towards it. These terms and conditions are available to the Client and will be transferred to it on first request. The Client understands and accepts that DIRECT is not able to negotiate these terms and conditions with its suppliers. The Client is deemed to know the conditions when signing the Offer and to accept them irrevocably.
9.3 Notice of default and repair – There can only be a fault attributable to DIRECT in the execution of the Assignment if the delivery does not correspond to what has been expressly agreed between the Parties in the Quotation.
If a Party violates its obligations, it will be given written notice of default by the other Party with a clear description of the shortcoming. Except as stated in Article 7.2 (in the event of delay), the notice of default must give the defaulting Party a reasonable period of 30 days to remedy the shortcoming.
9.4 Liability – Except in the event of fraud or intentional error, DIRECT is not liable for damage resulting from problems of hardware or software. DIRECT is also never obliged to compensate for immaterial, indirect or consequential damage, including – but in no way limited to – loss of profit, loss of income, production restrictions, administration or personnel costs and loss of customers, loss of data or the disclosure of confidential data.
Direct’s liability will in any case be limited to foreseeable, direct and personal damage suffered.
DIRECT is in no way liable for interventions by third parties.
DIRECT is not liable for malfunctioning software, misuse, installation or adjustments by the customer, infections with non-exhaustive viruses, malware, randomware, hacking, etc.
DIRECT does not offer any warranty for hardware other than that offered by the manufacturer or its supplier of the hardware.
Interventions with the Client will be charged by DIRECT, unless they remain at the expense of DIRECT according to the Agreement, and limited to the conditions described in the Offer.
9.5 Responsibility for compliance with the license conditions – Only the Client is responsible for compliance with the license conditions of the hardware and / or software purchased by him, whether or not via DIRECT. The Client undertakes not to install or use any software without a valid license.
9.6 Force majeure – In the event of force majeure, DIRECT is released by operation of law and is not obliged to fulfil its obligations towards the Client for the duration of the force majeure situation. Force majeure is understood to mean the situation in which the execution of the Agreement by one of the parties is prevented in whole or in part, whether or not temporarily, by circumstances beyond the control of that party, even if this circumstance was already foreseeable at the time of the conclusion of the Agreement. Each Party undertakes to make all reasonable efforts to limit the consequences of the force majeure situation. If the duration of the force majeure situation lasts more than 30 days, the Parties will sit together to find a solution. In the event that the force majeure lasts longer than two months, each Party is entitled to terminate the Agreement without the intervention of the court, without the Party invoking force majeure being obliged to pay any compensation to the other Party.
9.7 Limitation of compensation – Direct’s contractual or extra-contractual liability is without prejudice to art. 9.4 always and in all cases limited to an amount equal to 15% of the agreed value of the assignment or, if the duration of the assignment exceeds one year, to a maximum of 15% of the annual value of the assignment.
Article 10. Intellectual property rights
10.1 General – Each Party must respect all intellectual property rights of the other Party or of any third party. Nothing in this Agreement shall be construed or construed as a transfer of the intellectual property rights from one Party to another Party.
10.2 Direct’s rights – Unless otherwise agreed in writing, DIRECT remains the holder of the intellectual property rights (including – but by no means limited to – the copyrights, the rights to drawings & models, trademark rights, right to inventions, rights to software and rights to databases) to all designs, images, ideas, texts or any other material created and/or communicated in execution of the Assignment that, or documentation created or communicated in the context of the Assignment, including the result delivered and regardless of its provisional or final nature. DIRECT has the right to use these designs, images, ideas, texts, or any other material or documentation that has been created or communicated in the context of the Assignment for the execution of assignments for third parties. All intellectual property rights relating to the software made available or developed by DIRECT for the Client, as well as the services, documentation provided by DIRECT, are exclusively vested in DIRECT and/or third parties – insofar as it concerns software or documentation from third parties. The Client only obtains a non-exclusive and non-transferable right of use for the duration of the Agreement.
Article 11. Data protection
11.2 DIRECT as processor – In the context of the services under the Agreement, DIRECT can process personal data on behalf of the Client. In such a case, DIRECT acts as processor and the conditions of the Processor Agreement (Appendix 1) apply in addition.
Article 12. Confidentiality
Both the Client and DIRECT undertake not to communicate information about the production, organization and working methods and other information that they learn in the context of the negotiations and the execution of the Agreement, as well as the data to which they have access, not to communicate this information to third parties, not to use this information for purposes other than for the execution of the Agreement and to communicate such data only to their employees, appointees and representatives insofar as this is necessary for the execution of the Agreement and on condition that they are bound by obligations of confidentiality comparable to this provision. The Parties shall ensure the necessary security to ensure the confidentiality of the data. The obligation of confidentiality shall continue to apply until ten (10) years after the termination of the Agreement.
Article 13. Derogation and Modification
13.1 Deviation after judicial intervention – If one or more of the provisions of these General Terms and Conditions are declared null and void on the basis of a court decision, this will only have consequences for the relevant provision and neither the other provisions nor the General Terms and Conditions in their entirety will be affected by this.
13.2 Change – DIRECT may amend these General Terms and Conditions to reflect the changed market or legislation. After notification of the amended General Terms and Conditions by registered letter or by e-mail with acknowledgement of receipt by DIRECT to the Client, these will apply immediately. If the Client does not accept the adjustments to the General Terms and Conditions and the Parties cannot agree on reasonable conditions, the Client may terminate the Agreement without compensation within seven (7) days of receipt of the amended General Terms and Conditions, unless the adjustments have been made for a valid reason, which will be communicated at the same time as the new General Terms and Conditions, for example, to comply with a legal obligation.
13.3 This Agreement does not constitute an implied waiver of rights. Except to the extent expressly provided for in this Agreement, waiver of rights by either Party or the fact that one of the Parties does not bring a claim for an attributable failure to comply with any provision of this Agreement shall not constitute a waiver of rights in respect of a subsequent attributable shortcoming or in any way affect the legal force of that provision. A Party shall not be deemed to have waived any right or claim under this Agreement or relating to a breach of contract by the other Party, unless such waiver is expressly made and communicated in writing and by registered post.
Article 14. Applicable law, mediation and competent court
14.1 Applicable law – The agreement(s) concluded between the Client and DIRECT to which these General Terms and Conditions apply, as well as all agreements arising from them, are exclusively governed by Belgian law.
14.2 Mediation – In the event of a dispute between the parties about the formation, execution, interpretation and termination of the Agreement concluded between the Client and DIRECT, which cannot be settled amicably, the parties undertake to try to reach an agreement through mediation. The mediation starts no later than 15 days after the request for mediation has been communicated by one party to the other party and the duration of the mediation may not exceed 30 days, except with the express agreement of the parties.
14.3 Competent Court – If the mediation fails or is not possible, only Courts in East Flanders, Ghent division are competent.
Addendum Privacy Statement
Article 0: DEFINITIONS
AVG: Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (also referred to as ‘GDPR’), as the Belgian Implementing Act of 30 July 2018 on the protection of natural persons with regard to the processing of personal data;
Authority: the Dutch Data Protection Authority as referred to in Article 51 GDPR; the independent public authority, called the Data Protection Authority (DPA), which has been appointed in Belgium by law of 3 December 2017 as a supervisory authority for the supervision of the processing of personal data;
Data subject: an identified or identifiable natural person to whom a Personal Data relates;
Special categories of personal data: Personal data as referred to in Article 9 of the GDPR; data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, or trade union membership, as well as genetic data, biometric data for the purpose of uniquely identifying a person or data relating to a person or data relating to a person’s sexual behaviour or sexual orientation;
Services: the services provided by Direct to the Customer, as further stipulated in the Service Agreement and its description, included on direct’s website (http://www.Direct.eu/);
Identifiable: where a natural person can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more elements characteristic of the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;
Breach (in connection with Personal Data): a breach of security that accidentally or unlawfully results in the destruction, loss, alteration or unauthorised disclosure of, or access to transmitted, stored or otherwise processed data within the meaning of Article 4.12 GDPR;
Agreement: this “Agreement for processing of
Personal data’, including its Annexes, if any;
Personal data: all information about an identified or identifiable natural person (the Data Subject), within the meaning of Article 4.1 GDPR;
Sub-Processor: any non-subordinate party that is involved by the Processor in the processing of Personal Data in the context of the Assignment Agreement, not being its employees or employees;
Controller: a natural or legal person, public authority, agency or other body which, alone or jointly with others, determines the purposes and means of the processing of personal data; where the purposes and means of such processing are determined by Union or Member State law, it may determine who the controller is or the criteria according to which it is designated, all this within the meaning of Article 4.7 GDPR;
Processor: a natural or legal person, a public authority, a service or another body that processes personal data on behalf of the Controller within the meaning of Article 4.8 GDPR;
Processing: any action or set of operations relating to Personal Data or a set of Personal Data, whether or not carried out by automated means, including in any case the collection, recording, organisation, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction of data, within the meaning of Article 4.2 GDPR.
Article 1: SCOPE OF THE PROCESSING
1.1. In the context of the Agreement, the Client transfers personal data to Direct.
For the entire duration of the Agreement, Direct will process this personal data in accordance with the conditions stipulated in this Processor Agreement.
This Processor Agreement is an inseparable part of the Agreement. Insofar as the provisions of this Processor Agreement would conflict with the provisions of the Agreement, the provisions of this Processor Agreement shall prevail.
1.2. The processing takes place under the responsibility of the Client. Direct has no control over the purpose and means of the processing and does not make decisions about matters such as the use of personal data, the retention period of the Personal Data processed for the Client and the provision of personal data to third parties. The Client must ensure that it has clearly established the purpose and means of the processing of the personal data. Control over the personal data never rests with Direct.
ARTICLE 2: THE NATURE AND PURPOSE OF THE PROCESSING
2.1. The processing of the personal data takes place in the context of the execution of the Agreement, whereby the Client is regarded as ‘controller’, and Directly as ‘processor’ within the meaning of the GDPR. Direct does not make any other use of these personal data or process these personal data in a way that is not part of the Agreement and the description of the Services, unless expressly stipulated otherwise between the Parties.
2.2. As further stipulated in the Agreement and the description of the Services, the processing activities may include:
- Providing remote support by logging in and watching the screen (as with TeamViewer), plus the purposes that are reasonably related to this or that are determined with further consent.
This ‘viewing’ processing ends when the TeamViewer connection is closed.
- Storing the Client’s data in the ‘cloud’ with associated online services
ARTICLE 3: TYPES OF PERSONAL DATA
3.1. It will be immediately unknown which personal data are stored in the cloud by the Client.
3.2. In general, it can be stated that Direct will mainly process identification data of data subjects on behalf of the Client, such as name, address, telephone number, e-mail address, dates of birth, as well as any financial data.
3.3. However, the Client shall ensure that no personal data are transferred to Direct other than those that are strictly necessary for the provision of the Services. The Client, with the exclusion of Direct, is and remains responsible for the choice and content of the personal data that are passed on by the Client to Direct in execution of the Agreement and by using the Services.
ARTICLE 4: CATEGORIES OF DATA SUBJECTS
4.1. Direct will often be unaware of which categories of personal data are stored in the cloud by the Client.
4.2. In general, it can be stated that Direct will mainly process the personal data of employees, customers and/or suppliers of the Client.
4.3. The Customer declares and guarantees that the data subjects whose personal data are transferred to Direct by the Customer or by a third party, on the instructions of the Customer, can lawfully be transferred to Direct.
ARTICLE 5: RIGHTS AND OBLIGATIONS OF THE CLIENT
5.1. The Client shall immediately inform the Client, with the help of the systems made available to the Client by Direct, without delay when a third party requests the Client to remove his personal data from Direct’s systems, or to no longer use them in the context of the Agreement.
5.2. The Client may request Direct to provide its reasonable cooperation in an audit of the operation and systems of Direct that is necessary to demonstrate compliance with the obligations of Article 28 GDPR. Such an audit can take place once a year and by an auditor authorised by the Client, preferably by a third party appointed by both parties. An audit must be announced in writing to Direct at least ten days before the commencement, with a description of the parts in which the audit takes place and the audit process, and must not unduly disrupt Direct’s business activities. Direct will cooperate with the audit and make all information reasonably relevant to the audit, including supporting personal data such as system logs, and employees available as timely as possible, insofar as the (in)direct consequences of this do not cause a violation of the (contractual) rights, obligations, or legal requirements to the overall service or harm the interests of Direct.
Direct’s assistance in an audit will be invoiced at the then current hourly rates, which on the date of entry into force of this Processor Agreement will be € 110.00 excl. VAT amounts.
ARTICLE 6: OBLIGATIONS OF DIRECT
6.1. Processing in accordance with the instructions of the Client
Directly and all those who act under its responsibility or authority and have access to the personal data, will only process this personal data according to the written instructions of the Client, and this in function of the purposes described in Article 2.
Immediately, all reasonable instructions from the Client in connection with the processing of personal data will follow. Direct will immediately inform the Client if Direct is of the opinion that the instructions are in violation of the GDPR.
The above can be disregarded immediately if a legal provision obliges it to process. In that case, Direct will inform the Client of that legal provision prior to processing, unless that legislation prohibits this notification for important reasons of public interest.
6.2. Appropriate technical and organisational measures
Taking into account the state of the art, the implementation costs, as well as the nature, scope, context and purposes of processing and the risks to the rights and freedoms of individuals that vary in probability and severity, Direct shall take appropriate technical and organisational measures to ensure a level of security appropriate to the risk.
These measures will be in line with current industry practice and shall include at least the following:
- physical access security measures;
- logical access control, using passwords;
- organisational measures for access security;
- random monitoring of policy compliance;
- security of network connections via Secure Socket Layer (SSL) technology;
- a secure internal network;
- purpose-based access restrictions;
- control of powers granted.
Direct does not guarantee that the security is effective under all circumstances. Direct will make every effort to ensure that the security meets a level that, in view of the state of the art, the sensitivity of the personal data and the costs associated with taking the security, is not unreasonable.
The Client has been well informed about the technical and organizational measures taken by Direct and is of the opinion that these measures have a level of security that suits the nature of the personal data and the scope, context, purposes and risks of the processing and that DIRECT, more generally, offers adequate guarantees in terms of data protection.
6.3 Personal data breaches
The Client will immediately inform as soon as it has become aware of a Personal Data Breach.
The notification of the breach to the Data Protection Authority and (possibly) the person(s) involved is always the responsibility of the Client.
6.4. Processing by others, under the responsibility of Direct
The Client hereby gives his general permission that the Direct communicates the personal data to third parties, including Sub-processors. The Client will immediately inform of the existence of these Sub-processors.
If Direct wishes to appoint or replace a Sub-processor, Direct will inform the Client of this. The Client has the right to object to this appointment within 8 days after the information. In the event of an objection, this may in some cases mean that Direct must terminate the Agreement, which the Client accepts. Whether the Agreement should be terminated is at the sole discretion of Direct.
When Direct hires another processor to carry out specific processing activities on behalf of the Client, the same data protection obligations will be imposed on this other processor as those included in the Processor Agreement between the Client and Direct. In particular, it concerns the obligation to provide adequate guarantees with regard to the application of appropriate technical and organizational measures so that the processing complies with the provisions of the Processor Agreement and the GDPR.
If the other processor does not comply with its obligations regarding data protection, DIRECT remains fully liable to the Client for the fulfilment of the obligations of that other processor.
Direct declares and guarantees that the persons authorized to process personal data have committed themselves to it or undertake to observe the confidentiality of the personal data.
The Client will directly assist in complying with the Client’s obligations under the GDPR regarding security of processing, notification of a Personal Data Breach to the supervisory authority and to the data subject, the preparation of a data protection impact assessment (if applicable), and prior consultation.
Direct may charge for such assistance.
6.6. Requests from data subjects
In the event that a data subject addresses a request to direct the exercise of one of his rights under the GDPR, Direct will forward the request to the Client, and the Client will further handle the request. The Client agrees that Direct may inform the data subject that Direct is not the controller and that Direct has forwarded the request to the Client, who will further contact the data subject.
6.7. End of the Data Processing Agreement
This Processor Agreement ends when the Agreement is terminated.
At that time, Direct will transfer the personal data provided by the Client to Direct back to the Client or – if the Client immediately requests this – destroy it. Direct will only keep a copy of the personal data if it is obliged to do so on the basis of the law or professional regulations.
The costs of collecting and transferring personal data at the end of the Agreement are for the account of the Client. This is also the case for the costs of the destruction of the personal data.
ARTICLE 7: LIABILITY AND GUARANTEES
7.1. The Client guarantees that the processing of personal data on the basis of the Processor Agreement is not unlawful and does not infringe the rights of the data subject(s).
Direct will in no way be liable for damage resulting from instructions from the Client.
7.2. The Client guarantees that the content, use and order for the processing of the personal data is not unlawful and does not infringe any right of third parties, and that all additional guarantees that apply to the processing of the Special Categories of Personal Data have been met. The Client indemnifies Direct against all claims and claims related thereto.
7.3. Any liability of Direct for any other form of damage is excluded, including additional compensation in any form whatsoever, as well as compensation for indirect or consequential damage or damage due to loss of turnover or profit, fines imposed on the controller for example – but not exclusively – by the Data Protection Authority, delay damage, damage due to loss of data, damage due to exceeding of deadlines as a result of changed circumstances, theft, loss or damage to data and goods and damage due to information or advice provided by Direct, the content of which is not explicitly part of Direct’s obligations.
The amount of any compensation owed by Direct in the event of liability is capped at the amount paid out by Direct’s liability insurer in the case in question, or up to a maximum amount of 2,500 euros.
7.4. In principle, direct processing of personal data only within the European Economic Area (EEA).
Nevertheless, the Client hereby gives his general permission that Direct can communicate personal data to third parties who are located outside the EEA, provided that the rules for such transfer (Articles 44-50 GDPR) are met. Direct may also transfer personal data to a country outside the EEA if such transfer is necessary to comply with a binding European or Belgian legal rule. In such a case, Direct will notify the Client in advance and in writing of the legal rule that obliges Direct to pass on personal data, unless the relevant legal rule prohibits such notification.