The provisions shall, where appropriate in addition to all prior agreements concluded by and between the parties, apply to the offer, order, delivery or invoice, in exclusion to the customerʼs standard terms and conditions.
2. Establishment of the agreement
Each offer or price quotation by XIO C.V.B.A (hereinafter referred to as “XIO”) shall be subject to change and without obligation at all times. Each offer or price quotation shall remain valid for 15 days after the date of the offer, unless expressly stipulated otherwise on said offer.
In the absence of a written functional specification, XIO shall not be held liable for any particular intention that the customer may have concerning the project. Furthermore, in such a case, XIO shall be at liberty to provide the services in such a way as it shall deem appropriate.
3.2. Delivery period
Failure on the part of XIO to comply with the agreed delivery period shall under no circumstances be invoked by the customer as reason for termination of the agreement.
Failure on the part of XIO to comply with the agreed delivery period shall under no circumstances be invoked by the customer as a reason for compensation of the agreement unless it can be unambiguously proven that XIO is responsible for the delay.
3.3. Acceptance of the delivery
All deliveries which are not protested expressly, by registered letter, within seven (7) days, shall be deemed irrevocably accepted.
3.4. Obligation of means
Except under written and express stipulation, XIO shall at no time be held to any result.
3.5. Software delivery
In placing an order, the customer acknowledges that it has been sufficiently informed by XIO in advance about the possibilities of the delivered software. The conditions of use of standard software not developed by XIO, but given under licence to the customer under the agreement, shall be duly complied with by the customer. The customer shall use the software only for its own, internal operating processes. Use by third parties for the customerʼs operating processes is not authorised. Any violation of these conditions shall under no circumstances make XIO liable. No agreement with XIO shall entail transfer of any intellectual property rights relating to any software, unless explicitly agreed otherwise. XIO or its licenser shall, depending on the case, remain the full and exclusive owners of the software.
4. Illegal use
The customer shall under no circumstances use the services or facilities offered, including the storage spaces offered, to commit violations, or cause damage or hindrance against XIO or third parties. The customerʼs activities shall not lead thereto either. The customer shall ensure at all times that no punishable and/or infringing data, files, software, meta tags, hyperlinks, deep links or comparable references or information are present on hardware made available by XIO. The customer shall, upon request by XIO, safeguard the latter from such liability (including legal fees) and shall intervene, at its expense, in any proceedings initiated against XIO in connection thereto. The use of Warez, MP3 sites and/or other sites with illegal software is prohibited. Spamming is strictly prohibited on all hardware and systems made available by XIO, and shall result in the immediate blocking. The customer shall respond immediately to every request of XIO, as well as to each reasonable request by a third party to remove and/or adapt its own contents. The customer shall waive its right to claim any compensation from XIO. By way of example, XIO allows no pornographic material on its servers, nor illegal MP3 sites or sites from which items may be offered that run counter to the public order or to good conduct, or are illegal practice; nor may any activities be carried out which infringe protected works or which are punishable by the IT Crime Act.
XIO shall be entitled to terminate the agreement effective immediately and without legal intervention, if one of the foregoing eventualities should occur.
5.1. Force majeure
XIO shall under no circumstances be held liable for any fault caused by (1) force majeure (2) lack of foresight (3) an action by any enforcing or legislative government body (4) default by a supplier or subcontractor (5) theft, intentional damage, strikes, lock-outs or industrial action of any and all types, (6) any circumstance that falls reasonably beyond its control.
5.2. Latent defects
The imperative legal provisions notwithstanding, XIO shall not be held liable for latent defects.
The liability of XIO shall be limited to at most the loss of remuneration payable to it under this agreement; with the exclusion, therefore, of any other implicit or unwritten obligations, over a period of three (3) months prior to the occurrence and relating to the specific project to which the claim pertains. Under no circumstances shall any compensation be payable for indirect loss or for loss of earnings.
Under no circumstances shall XIO be held liable for indirect loss, such as commercial or financial loss, loss of data, loss of reputation, profit or turnover, loss of customers or loss as a result of legal steps taken by third parties against the customer. XIO shall consequently under no circumstances be held liable from any outage of the Internet connection through technical or other failure, within or without the XIO network. The customer shall be solely liable for the appropriate use of the product, service or software, taking due account of the specification, documentation and instructions of XIO.
- The customer shall be fully liable at all times for all data contained on the space allotted to it on the systems of XIO, or which is transmitted via the systems of XIO.
- The customer shall be liable at all times for all loss and consequential loss caused by the use and misuse of its access to the systems of XIO.
- The customer shall be deemed to have a back-up of all data which are found on the systems of XIO. The latter may not be held liable for any loss of or damage to the customerʼs data beyond its control. In particular, XIO shall not be liable for any loss suffered by the customer owing to a technical failure or defect, nor because of viruses or other software intended to cause loss or damage.
- The customer shall recover loss caused by third parties directly from said third parties; XIO may not be held liable in this regard.
6. Price and Payment
Unless stipulated otherwise, our prices shall be in euros, exclusive of VAT. XIO reserves the right to adjust its prices, if changes should occur in the price of energy, raw materials, or in one of the other components of the costs taken into account by XIO, after the conclusion of the agreement.
Unless stipulated otherwise on the invoice, all invoices shall be payable in Ghent at the latest within 30 days of the date of invoice.
If an invoice is not paid on the date due, the amount payable shall as of right and without prior notice, accrue contractual compensation of 20%, plus interest for late payment of 10% per month. Each commenced month shall be considered as a complete month.
For as long as the invoiced amount has not been paid in full, XIO may suspend all further deliveries, and may terminate the agreement simply by relevant notice served by registered letter.
The issue of bills of exchange shall not lead to any novation, so that the so that the current general terms and conditions shall remain fully in force.
In the event of re-invoicing requested by the customer, administrative charges of €40 shall be added, exclusive of VAT.
The customer shall remain jointly and severally liable for all payments and all commitments, including when the customer has asked for third parties to be invoiced.
7. Term and termination
Unless stipulated otherwise in the agreement, an agreement for all other XIO products and/or services shall be concluded for 12 months; said term shall be also indicated on the invoice. Upon the expiry of a term, the agreement shall be tacitly renewed for the same period, unless terminated in good time by the customer or XIO. Notice of termination of an agreement by the customer can only be served at least 2 (two) calendar months prior to the expiry of the agreed term by sending an e-mail to firstname.lastname@example.org, indicating the specific service(s) to be terminated by XIO.
XIO shall have the right to annul this agreement unilaterally at all times, if the co-contracting party should fail seriously in fulfilling its obligations, after, insofar as could prove useful, the latter has been served relevant notice by registered letter, and has failed to rectify the notified failure within a reasonable period.
XIO reserves the right not to maintain domains any longer after the payment period has been exceeded by six (6) months.
During a period of twelve months as of the termination of the contract, irrespective of the reason for said termination, the customer shall refrain from concluding contracts with employees or usual suppliers of XIO or its customers, or of persuading them to engage in any Competing Activity. The term “Competing Activity” shall, for the purposes of this agreement, refer to any action or activity that is the same or similar to, or in conflict or in competition with any action or activity pertaining to the services provided.
During a period of twenty-four months from the termination of the contract, irrespective of the reason for said termination, the customer shall refrain from engaging, directly or indirectly, in any Competing Activity in regard to the project under which the services are provided.
A violation of the obligations of article 7.3. by the customer or suppliers shall, as of right, entail compensation of 62000.00 EUR (six two zero zero zero euros point zero zero eurcent) without prejudice to the right of XIO to claim higher compensation on the grounds of proven loss.
The rights and obligations arising out of the agreements concluded with XIO for the customer, shall not be transferable fully or partially to third parties, without the prior, written consent of XIO. If a provision of an agreement concluded with XIO or the application thereof, should be unperformable at any level, for any party or circumstance, the rest of agreement shall remain intact.
If a provision of this agreement is null and void, it shall be deemed as non-existent. The voidance of one or more provisions of this agreement shall not entail the voidance of the other agreements.
9. General provisions
Belgian law shall apply. We reserve the right to refer each dispute to the justice of the peace or the courts of our registered office or place of business.