GENERAL TERMS AND CONDITIONS OPTIOS
VERSION 2022-3
1. General
The BV OPTIOS, with registered office at 9080 Lochristi, Antwerpse Steenweg 19, registered in the register of legal entities under the number 0629.718.060 (hereinafter referred to as "Optios") develops and commercializes software to achieve the automation of companies and includes, among other things, without being exhaustive, online appointments, a digital agenda, customer database, stock management and cash register... (hereinafter referred to as "the Software").
Any contractual relationship between Optios and any natural or legal person (hereinafter referred to as "the Customer") who makes use of Optios' Software or purchases peripherals linked to the Software shall be governed by these general conditions (hereinafter referred to as "General Conditions"), possibly supplemented by special contractual conditions.
The Customer acknowledges to have taken note of the General Terms and Conditions and to have accepted them in their entirety. Any purchase, sales or other conditions of the Customer are expressly excluded.
Deviations and additions to the General Terms and Conditions are valid only if agreed in writing between the parties.
2. Defintions
For the purposes of these Terms and Conditions, the following definitions apply:
"General Terms and Conditions" means these general terms and conditions applicable to the provision of access by Optios to the Customer.
a) " Subscription": subscription entered into by Customer to use the Software;
(b) " Subscription Period" means duration for which a subscription is taken out by the Customer;
c) " User" means any end user of Customer who is authorized by Customer to use the Software according to the access rights granted to him.
d) " Terms of Use" means the terms and conditions specifically applicable to each User using the Software.
e) " Principal User" means the user who can set access rights for other Users. This person is also a User himself.
f) " Customer" means the natural or legal person who, for purposes within his trade, business or craft or profession, enters into the Agreement with Optios for the use of the Software.
g) "Customer Data" means any data added by Customer in the Software, such as, among others, contact information of its end customers.
(h) " Software" means the digital platform provided by Optios to Customer;
(i) " Agreement" means the agreement between the Customer and Optios that has as its object the provision of access to the Software and of which the General Terms and Conditions are an integral part.
3. Offers and formation of the Agreement
3.1 All offers, quotations on the website and / or social media of Optios have only an indicative nature and are not binding. Offers can only be considered by the Client as an invitation to conclude a Contract. The prices and conditions on the offer are only valid for a period of 30 days, unless otherwise stipulated.
3.2 The Customer acknowledges to have entered into an Agreement from the signing of an order form or the receipt by Optios of the Customer's approval via email or from the receipt by Optios of the Customer's payment. In the event that the chosen Subscription is not mentioned, the lowest Subscription will be activated.
If the Client registers a paid account through Optios' website and hereby approves and accepts the Terms and Conditions, he also acknowledges the formation of a Contract.
3.3 Optios reserves the right to suspend or refuse the order if the order turns out to be incomplete, if payment is not received or if the data communicated is obviously incorrect.
4. Use of the Software.
4.1 Optios grants the Customer a non-exclusive, non-transferable right to access and use the Software solely for the Customer's internal business purposes. This right includes the right to grant the agreed number of Users access to the Software via their login credentials.
4.2 The Customer shall have a right of use only to the object code of the Software. Under no circumstances can the Customer assert rights to the source code, which is and remains the exclusive and full property of Optios and/or third parties.
4.3 The Customer understands that the Software is essentially "software-as-a-service" provided over the Internet, which requires a working and sufficient performance Internet connection. It is the Customer's responsibility to have the necessary hardware and software that is comptable with the Software. The requirements for the appropriate equipment are listed on the Optios website.
4.4 Optios will provide a login for the Users to the Customer. The Customer and its Users must always comply with the Terms of Use. The Customer bears any responsibility for the use that the Users make of the Software. The Primary User can always create additional Users. The Customer acknowledges that the creation of additional Users will have an impact on the price as stated in Article 5, unless otherwise agreed in writing.
4.5 Login credentials that provide access to the Software are personal and confidential and may not be disclosed to others. Optios reserves the right to block by itself any account for which Optios reasonably suspects that the login credentials are being used by someone other than the respective User.
4.6 The Customer is strictly prohibited from removing technical devices intended to protect the Software.
5. Price and Payment
5.1 The Customer shall pay a fee for the use of the Software as described in the quotation.
Optios invoices the fee monthly, in advance.
5.2 Unless otherwise stipulated, any discounts granted will be for 1 year at a time.
5.3 All invoices shall be paid no later than on their due date. Any invoice that remains unpaid on its due date shall, ipso jure and without a reminder or notice of default, incur interest of 1% per month started on the principal amount outstanding, excluding VAT, until it is paid in full. In addition, a fixed compensation of 15% on the outstanding principal amount, with a minimum of 125,00 EUR and a maximum of 2.500,00 EUR, is due by right and without prior notice of default. In addition, a fixed compensation of 40.00 EUR per unpaid invoice is automatically claimed to cover the collection costs. If the actual collection costs are higher, this difference shall also be borne by the Customer.
5.4 In addition, in the event of non-payment of the invoice, and after written demand for payment, within the aforementioned deadlines, the Software may be deactivated by Optios and consequently become unavailable.
5.5 Optios reserves the right to change the Subscription rates in effect. Changes linked to inflation or indexations may be implemented without prior communication. For all other price changes not linked to inflation or indexations, the Customer will be notified via email of the changed rates at least one month before the end of the current Subscription period. In case the Customer does not agree with the rates not linked to indexations or inflation for a new Subscription Period, he can notify Optios of his wish not to renew the Agreement.
5.6 The Customer may at any time during the Subscription Period choose to upgrade to a higher plan ("Upgrade"). The Upgrade will take effect the next month after the Upgrade has been requested.
If the Customer creates additional Users during a Subscription Period that requires an Upgrade, Optios may require the Customer to perform an Upgrade prior to adding the additional Users.
5.7 During a Subscription Period, the Customer cannot opt for a lower formula ('Downgrade'). A Downgrade is only possible at the renewal of the Subscription Period and must be requested at least 2 months before the end of the current Subscription Period.
6. Duration and Termination
6.1 The Agreement will enter into force on the day the Software is activated by the Customer, i.e. upon confirming the order online or upon signing the order form, whichever action has occurred first.
6.2 Except as otherwise provided in writing, a Subscription Period shall have a term of 1 year.
After the end of the initial Subscription Period, the Agreement is automatically tacitly renewed for successive Subscription Periods equal to the duration of the initial Subscription Period, unless the Client or Optios has notified the other Party by registered mail at least 2 months before the end of the current Subscription Period that it does not wish to renew the Agreement. The registered letter states the OPTIOS ID, VAT number, name of the business manager, address, reason for termination and signature of the business manager.
6.3 Each party may terminate the Agreement without notice and with immediate effect in writing by registered mail if the other party is declared bankrupt, is dissolved and put into liquidation, or has become manifestly insolvent. Optios can in such cases never be obliged to any restitution or payment of monies already received or to damages.
6.4 Optios may terminate the Agreement with immediate effect if, after receiving a written notice of default, the Client fails to pay invoices on time or expresses itself in such a negative manner on social media and/or other channels that it may seriously jeopardize Optios' reputation.
6.5 Unless otherwise agreed, Optios will delete the Customer Data after a period of 1 month after the expiration or termination of the Agreement.
During this period, the Customer may transfer the Customer Data to another external system. The Customer acknowledges that it is responsible for any loss of data resulting from the migration. Optios does not provide assistance for migrating Customer Data to another platform.
7. Training and documentation.
7.1 The Customer will receive from Optios an instructional video regarding the use of Software. The instruction video can be viewed by the Client and its Users at their own pace.
7.2 If the Customer additionally orders training, the training will be organized at the Customer's facility, unless expressly agreed otherwise. The training is available in the following languages: Dutch, French and English. The training shall be given in Dutch as standard, unless the Client requests Optios in advance to give the training in another language.
7.3 The provision of user documentation shall be made only if expressly agreed in writing between the parties. Optios shall always freely determine whether the documentation is made available in paper or digital form. The user documentation shall be made available either in Dutch or in English. Any translations of user documentation shall always be done at the expense of the Customer.
8. Warranty
8.1 The Customer acknowledges that the Software is made available "as is" and "as available" and cannot be customized for the Customer. The Customer acknowledges to be sufficiently informed about the possibilities and limitations of the Software.
8.2 Optios warrants that the Software will function on the equipment for which the Software was developed. However, Optios does not guarantee under any circumstances that the Software will work flawlessly and automatically with all types or new versions of any other computer programs or equipment, in particular but not limited to operating systems.
8.3 Optios does not warrant that the Software will be suitable for its intended use or seamlessly aligned with the Customer's business or operations, that the Software will operate without interruption, errors or defects, or that all errors and defects will be corrected at all times.
9. Intellectual Property
9.1 All intellectual property rights with respect to the Software shall remain with Optios or its licensors. Optios shall indemnify the Customer against all damages that would result from a claim brought by a third party because the Software would infringe the intellectual property rights of the third party.
9.2 The Customer shall not have the right to edit, translate or modify the Software in whole or in part without the prior written consent of Optios.
10. Data Protection
10.1 Optios processes personal data of the Client, its Users and/or other employees of the Client. As Optios processes this personal data for its own purposes, Optios acts as a 'data controller' within the meaning of data protection legislation. Optios' privacy statement contains all relevant information on how Optios handles personal data as a data controller.
By entering into a Contract with Optios, Client acknowledges that it has read Optios' privacy statement, as reflected on the Website, and understands its contents.
10.2 With respect to the Customer Data, the Customer acknowledges that it will act as a "data controller" and Optios will act as a "processor" within the meaning of data protection legislation. The arrangements in this regard shall be governed exclusively by the Processing Agreement attached to these General Terms and Conditions.
11. Force majeure and impresision
11.1 In case of force majeure Optios shall have the right to suspend the performance of the agreement or to dissolve it in whole or in part without the Client having any right to compensation for costs, damages, interest, etc.
Force majeure shall include the situation where the implementation of the Agreement by Optios is wholly or partly, even temporarily, prevented by circumstances beyond the control of Optios, even if these circumstances were already foreseen at the time of the conclusion of the Agreement. Without aiming to be exhaustive, the following shall be considered as cases of force majeure: exhaustion of stock, delays in or failure to deliver by suppliers, strikes or lockouts, fire, war, epidemics, floods, high absenteeism, electrical, computer, Internet or telecommunications failures, decisions or interventions by the authorities and errors or delays attributable to third parties.
Optios is not required to prove the unaccountable and unforeseeable nature of the circumstance constituting force majeure.
11.2 In the event that a fundamental change in economic conditions results in an unreasonable or disproportionate burden on the parties for the performance of the Agreement, the parties will consult with each other to jointly agree on a fair adjustment to the Agreement.
12. Liability
12.1 The parties acknowledge that the obligations on the part of Optios constitute an obligation of means. Optios shall only be liable for actual damages suffered which the Customer proves to have been directly caused by an error of Optios, which the Customer could not have avoided or mitigated by itself and which Optios does not remedy within 20 working days of receipt of a notice of default, without prejudice to any other agreed resolution times.
12.2 To the extent permitted under applicable law, the total, aggregate contractual and extra-contractual liability of Optios for damages suffered by the Customer in a Subscription Period, including in cases of gross negligence, shall be limited to the amount excluding VAT paid by the Customer for the use of the Software in that Subscription Period. If the Subscription Period has a duration of more than one year, the amount to which Optios can be held liable shall be limited to the total of the fees paid in one year.
In no event shall Optios' total liability for direct damages, for any reason whatsoever, exceed EUR 15,000.00.
12.3 Optios shall not be liable for any damages resulting from the temporary unavailability, suspension, interruption or delay of the Software.
12.4 In no event shall Optios be liable for indirect damages, including consequential damages, loss of profits, losses incurred, lost savings, lost potential financial or commercial opportunities, fines, loss of customers and damage to image, including in cases of gross negligence.
12. Hardware
12.1 Optios shall deliver the hardware according to the nature and number as agreed in the offer. Optios does not guarantee that the hardware is suitable for the use intended by the Client. Optios is in no case obliged to assembly and installation of the hardware, nor to supply the necessary materials for that purpose.
12.2 The delivery of the hardware shall take place at a place to be designated by the Customer. Delivery costs are not included in the purchase price and will be charged to the Customer, if applicable.
12.3 The delivered hardware remains the property of Optios until full payment of the invoice. The delivery is made at the risk of the Client.
12.4 Visible defects or the non-conformity of the delivery must be reported by the Customer no later than 3 working days after the receipt of the hardware. Otherwise the visible defects are covered and the goods are deemed to have been delivered as agreed.
13. Confidentiality
Customer agrees to keep confidential all information disclosed pursuant to or in connection with this Agreement, whether or not such information is expressly stated to be confidential or designated as such, and therefore not to disclose such confidential information to others or use it for any purpose other than the performance of the Agreement.
14. Transferability
Optios may assign all or any part of its rights and obligations under this Agreement to a third party without prior consultation or approval of Customer.
Customer shall not have the right to transfer all or any part of Customer's rights and obligations under this Agreement to a third party without Optios' prior approval.
15. Applicable law and competent court
15.1 The Agreement between Optios and the Client shall be governed exclusively by Belgian law; the application of the Vienna Sales Convention is expressly excluded.
15.2 In the event of a dispute, the courts of the judicial district of Optios' registered office shall have exclusive jurisdiction.
Addendum: processor agreement
Version 2022.03
This agreement on the processing of Personal Data ("Processor Agreement") governs the processing of Personal Data by the BV Optios, with registered office at 9080 Lochristi, Antwerpse Steenweg 19, registered in the Register of Legal Entities under the number 0629.718.060 (hereinafter referred to as "Optios BV") on behalf of the Customer and is attached to the General Terms and Conditions in which the Parties have agreed the conditions for the use of Optios.
ART. 1 DEFINITIONS
This Processing Agreement uses a number of terms that may be clarified as follows:
AVG
Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).
Personal Data(s):
Any information relating to an identified or Identifiable natural person (Data Subject) that can be directly or indirectly identified, in particular by means of identification data such as a name, an identification number, location data, an online ID or one or more specific elements that characterize the physical, physiological, genetic, psychological, economic, cultural or social identity of that natural person, which are added by Customer in the Software.
Person(s) affected:
The identified or identifiable person to whom a Personal Data relates.
Data leak:
A breach of security resulting in the destruction, loss, alteration or unauthorized disclosure of, or access to, Personal Data transmitted, stored or otherwise processed.
Agreement:
The agreement between the Client and Optios BV of which this addendum forms an integral part.
Software:
the digital platform that Optios offers to the Customer.-
Subprocessor:
Any other Processor employed by the Processor to perform specific processing activities on behalf of the Processor.
Processor:
A natural or legal person, government agency or department or other body which processes Personal Data on behalf of the Controller, without being subject to its direct authority.
Processor:
The Party that determines the purpose of and means for processing Personal Data.
ART. 2 PROCESSING ASSIGNMENT
2.1 The Customer is the Processor and has and retains full control over the Personal Data.
The Customer warrants that, if and to the extent applicable, it will act in accordance with the AVG and comply with its obligations under applicable law.
2.2 Optios BV acts as a Processor for the Customer for the services as described in the Agreement.
Optios BV processes Personal Data only in accordance with the documented instruction of the Customer as described in the Agreement, unless the processing is required by EU or national law to which Optios BV is subject.
Optios BV will only process the Personal Data for the purpose described in the Agreement.
2.3 The processing of Personal Data concerns Personal Data of customers introduced by the Customer. This includes the following data: personal identification data such as name, address, telephone number, email address, gender, date of birth, language, identity card number.
ART. 3 CONFIDENTIALITY
3.1 Optios BV treats all Personal Data as strictly confidential information. The Personal Data shall not be copied, transferred or otherwise processed in conflict with the assignment as defined in the Agreement, unless the Customer has given its written consent.
3.2 Optios BV's employees are subject to a duty of confidentiality which ensures that the employees will treat all Personal Data covered by this Processing Agreement in the strictest confidence.
Personal Data shall be accessible only to those employees who need access to such Personal Data in order to provide the services as described in the Agreement.
ART. 4 SECURITY
Optios BV undertakes to take appropriate technical and organizational measures to the best of its ability as set out in this Processing Agreement and applicable law.
Documentation regarding the security measures taken can be provided to the Customer upon first request.
The security measures are subject to technical progress and development which may cause them to change from time to time, provided that such updates and changes do not result in a reduction in the overall security of the Customer's Personal Data.
ART. 5 SUBPROCESSORS
5.1 The Client acknowledges and accepts that Optios BV may appoint Subprocessors for the processing of Personal Data in relation to the order. An overview of the Subprocessors can be obtained upon first request. Before appointing a new Subprocessor, Optios BV will add this party to the list. The Client may object to this new Subprocessor by protesting in writing within 5 working days of notification by Optios BV. This objection must always be reasonably motivated. The absence of objections by the Customer will be considered as an agreement with the relevant Subprocessor.
5.2 Optios BV undertakes to work only with Subprocessors who can provide a similar level of data protection to that provided by Optios BV.
Optios BV will always remain responsible for the Subprocessors it appoints.
ART. 6 TRANSFER OF PERSONAL DATA
6.1 Optios BV will not pass on the Personal Data to third parties. Optios BV will also in no case use the data of the customers introduced by the Customer for the expansion of its own database.
6.2 In principle, Optios BV will not transfer Personal Data to countries outside the European Economic Area ('EEA'). In some cases, Personal Data will be stored with suppliers with servers outside the European Economic Area. In that case, Optios BV will ensure that the Personal Data will have adequate protection.
ART. 7 ASSISTANCE
7.1 If the Customer receives a request from a Data Subject for the exercise of the Data Subject's rights under the AVG and the Customer requests assistance from Optios BV for the proper response to the request, Optios BV will assist the Customer by providing the necessary information and documentation.
If Optios BV receives a request directly from a Data Subject for the exercise of the Data Subject's rights and such request is related to Optios BV's mission, Optios BV will immediately forward the request to the Customer and will not respond directly to the request.
7.2 Optios BV shall provide reasonable assistance to the Customer in any data protection assessments required under Section 35 of the AVG, but only in relation to the processing of Personal Data provided by the Customer and processed by Optios BV.
ART. 8 DATA
If Optios BV identifies a Data Leak in relation to the Personal Data provided by the Customer, Optios BV will notify the Klnt immediately, and at the latest within 48h after identification.
Optios BV will cooperate with Customer and will take reasonable steps at Customer's direction to assist in investigating, mitigating and remedying the Data Leak.
In no event shall Optios BV notify any third party without the prior written consent of the Customer.
ART. 9 AUDIT
Upon the Customer's request, Optios BV shall make available all relevant information necessary to demonstrate compliance with this Processing Agreement.
ART. 10 - RETENTION PERIOD
Optios BV will retain the Personal Data provided by the Client for as long as necessary to carry out the assignment as described in the Agreement.
Unless otherwise agreed, Optios BV will delete the Personal Data provided by the Customer after a period of 1 month of expiry or termination of the Agreement. During this period, the Customer may transfer the Personal Data to another external system.
Optios BV may retain Customer's Personal Data to the extent required by EU or national legislation to which Optios BV is subject. In this case, Optios BV guarantees that the Customer's Personal Data will only be processed for the purpose specified in the relevant legislation and for no other purpose.
ART. 11 LIABILITY
Optios BV shall be liable to the Customer as a result of or in connection with this Processing Agreement or for any other reason to the extent and to the extent agreed by the Parties in the Agreement. The limitation of liability agreed in the Agreement shall be in full force and effect on the obligations set out in this Processing Agreement, with the understanding that the same event can never lead to multiple claims for damages.