Article 1: Introduction and Applicability of general terms
and conditions
1.1 These general terms and conditions apply to all offers, services and related invoices Refracted provides to its Clients and to all agreements entered into between Refracted and the Client.
1.2 Refracted shall refer to Refracted Security, with
registered office in Belgium, 2500 Lier, Guido Gezellelaan 11, register of legal persons Antwerp, division Mechelen and company number 0775.918.638.
1.3 The Client shall refer to the contractual partner of Refracted.
1.4 These general terms and conditions prevail over the terms and conditions of the Client or of a third party. No waiver, consent, modification, amendment or change of the terms contained herein shall be binding unless in writing and signed by Refracted and the Client.
1.5 The Client declares having been duly informed of these general terms and conditions and acknowledges to be bound by them.
Article 2: Offers, orders and acceptance
2.1 Each offer made by Refracted does not bind Refracted as such.
2.2 All information is provided for indicative purposes only. Any commitments made in writing or otherwise on behalf of Refracted by its employees or representatives only bind Refracted if such commitments have been explicitly accepted by it in writing.
2.3 Each offer from Refracted is valid for a period of thirty (30) days following the date of this offer, unless explicitly stated otherwise.
2.4 An agreement is only entered into between Refracted and the Client after the Client has explicitly accepted the offer, by signing an order confirmation, and provided this order confirmation has been received by Refracted. This acceptance can take place by e-mail.
Article 3: Duration
3.1 The duration of the agreement is mentioned in the offer. This may be for a definite period such as one or more clearly defined assignments with regard to certain services to be provided by Refracted. The agreement can also be entered for an indefinite period, for example in the event that Refracted undertakes to provide services on a regular basis.
3.2 Exceeding the agreed duration by Refracted does not entitle the Client to compensation or dissolution of the agreement.
Article 4: Information obligation
4.1 For the performance of the agreement, Refracted depends on the information provided by the Client. The Client is therefore obliged to make all data, information and documentation that could reasonably be useful for the execution of the agreement, available to Refracted in a timely and appropriate manner, preferably digitally. The Client is also obliged, prior to or during the performance of the agreement, to inform Refracted of any changes to the aforementioned data, information and documentation.
4.2 Refracted reserves the right to adjust the terms, price and execution deadlines of the agreement if this should reasonably appear necessary or justified on the basis of the amended data, information and documentation provided to it by the Client after the agreement is entered into.
4.3 If data, information and documentation necessary for the performance of the agreement are not made available, not made available on time and/or in accordance with the agreements made or these general terms and conditions, then Refracted is entitled to suspend the performance of the services until the aforementioned data, information
and documentation are made available. Refracted shall inform the Client of this in writing. If the Client fails for a period of thirty (30) days to properly inform Refracted, this failure shall be deemed to constitute a contractual breach on the part of the Client that entitles Refracted to terminate the agreement in accordance with clause 12.2 of these
general terms and conditions.
4.4 The Client undertakes to ensure that the data,
information and documentation provided are true.
Article 5: Performance of the services
5.1 Refracted shall perform the services to the best of its ability and is therefore only bound by a best-efforts obligation (“inspanningsverbintenis”). Refracted cannot and does not exclude the possibility that after completion of the services, attacks of any kind may occur on the computer systems of the Client. The role of Refracted is
purely of an advisory nature.
5.2 Refracted reserves the right to make use of
appointees and subcontractors, without the need for the Client’s permission.
5.3 As long as Refracted is performing the service, the Client shall not undertake any activities relating to the scope of the services or engage any third parties for that purpose, except with the express permission of Refracted.
5.4 If necessary for the proper performance of the
services, the Client shall provide Refracted access to its premises and relevant facilities.
5.5 The execution deadlines contained in the agreement are provided to the best of Refracted’s knowledge on the basis of the information known to Refracted when the offer was drawn up. Refracted undertakes to make every effort to meet the proposed deadlines. If there is a risk that the
proposed period of execution will be exceeded, Refracted and the Client shall consult with each other as soon as reasonably possible.
5.6 Execution periods can only be considered as expiry periods if this has been explicitly agreed between the parties.
5.7 If the Client owes Refracted an advance payment and/or must make certain information and/or materials available for the performance of the agreement, the predetermined execution periods shall only commence after receipt of full payment of the advance payment and/or the required information and/or materials.
5.8 A delay in the performance of the services does not entitle the Client to any compensation, nor it is it a reason to terminate the agreement. In the event of an abnormal delay in performance, meaning a delay of more than sixty (60) days, which is not attributable to the Client or force majeure, the Client has the right to give Refracted a notice
by registered letter to perform the services within a period of fifteen (30) days. Should Refracted fail to comply with such notice, the Client may terminate the agreement immediately, in which case it is only entitled to a refund of any advance payment for services that have not yet been performed, without any indemnification of any kind.
Article 6: Penetration testing and ethical hacking services
6.1 By signing the offer in which such services are
included, in accordance with clause 2.4 of these general terms and conditions, the Client consents to Refracted, including its employees and/or appointees, performing penetration tests and ethical hacking services on its computer systems and network infrastructure. By doing so, the Client also declares to be hold due title to all computer systems and network infrastructure on which the
services are performed and to have permission from third parties that host programs or websites for the Client, with or without direct links to the Client’s computer systems or network infrastructure.
6.2 Without limiting Refracted’s liability under clause 10.2 and 10.3 of these general terms and conditions, the Client shall not take or cause to take any criminal or civil action against Refracted, including its employees and/or appointees, in connection with the performance of penetrations tests and ethical hacking services.
6.3 It is the obligation of the Client to ensure that the systems and infrastructure on which the penetration tests and ethical hacking services are performed, are properly insured against the risks of damages of any nature. Refracted can never be held liable for damages suffered by the Client, by any of its contractual partners or by any third party before, during or after the execution of the
penetration tests and ethical hacking services.
Article 7: Prices, taxes, costs
7.1 Unless stated otherwise, Refracted’s offer shall be based on an hourly or daily rate expressed in euros, plus any costs specific to the services. All prices quoted in the offer are exclusive of VAT. A working day is deemed to consist of eight (8) hours. Refracted shall charge for all services actually rendered, even if more than eight (8)
hours were performed on a single day. If a daily rate is mentioned in the offer, the hourly rate is equal to the daily rate divided by 8 units.
7.2 The prices stated in the offer are valid for a period of thirty (30) days.
7.3 Services that were not included in the agreement or in the offer, and therefore do not form part of the original agreement and decisions by the Client requiring additional services, are estimated in a separate offer that must be approved in advance by the Client.
7.4 Domestic travel shall be invoiced at a fixed rate per kilometer effectively travelled from the place of residence of the employee/appointee performing the Assignment, plus applicable VAT. Public transport costs shall be invoiced to the Client plus the applicable VAT. Travel abroad shall be invoiced at the hourly rate. If a daily rate is used, this hourly rate shall be determined by dividing the daily rate by eight (8) units. Other costs, such as parking, hotel, airplane and lunches, will be invoiced to the Client, increased by any applicable VAT or other taxes.
Article 8: Payment
8.1 Services rendered shall be invoiced as agreed
between the parties. If no arrangements were made in this regard, they shall be invoiced according to the progress of the performances delivered by Refracted.
8.2 Refracted always provides its invoices in digital form to the Client.
8.3 Invoices are payable in EUR within a period of fifteen (15) days of the invoice date, unless otherwise agreed in writing.
8.4 Refracted reserves the right to suspend the
performance of the Agreement in the event that the Client fails to pay an invoice on time.
8.5 Each dispute with respect to the invoice must be made in writing, duly motivated and submitted by registered mail to Refracted within eight (8) days after receipt of the invoice, in absence of which the invoice is irrevocably considered accepted by the Client. No dispute entitles the Client to suspend or postpone payment in whole or in part.
8.6 In absence of full payment on the due date, a default interest of eight percent (8) per annum shall be payable on the invoice amount as of the due date until the day of full payment, ipso jure and without prior notice of default. The mere expiry of the due date shall constitute notice of default in accordance with article 1139 of the former Civil
Code. Moreover, in case of non-payment or incomplete payment, a lump-sum compensation of ten percent (10%) of the principal amount of the invoice (incl. VAT), with a minimum of 100,00 EUR, shall be due ipso jure and without prior notice of default.
8.7 If there are indications that the solvency of the Client may reasonably be doubted, such as in the event of non-payment or late payment of invoices, Refracted is entitled to demand advance payment or any other security from the Client for the performance of services yet to be carried
out, in default of which Refracted is entitled to immediately and unilaterally terminate the agreement without any
obligation of indemnification.
Article 9: Intellectual Property
9.1 All rights of intellectual property (including all
intellectual, industrial and other property rights (whether registered or not), including but not limited to copyrights, trademarks, trade names, logos, drawings, models or applications for registration as a drawing or model, patents
applications for patents, domain names, know-how, as well as rights to databases, computer programs) in works created, designed, developed or produced by or on behalf of Refracted and/or used in preparation or execution of the assignment with the Client, or resulting from it, remain the property of Refracted or its suppliers. Works include all
performances, creations, forms, sketches, arrangements of any kind, brands, systems, programs, software (both object codes and source codes), documents, drawings, plans, designs, models, documentation, databases, texts, manuals, reports, diagrams, analyses, technologies, trade
and business secrets, tools, methods, inventions,
discoveries, improvements, innovations, know-how.
9.2 Only when Refracted expressly consents in writing is the Client entitled to refer to the services of Refracted in its communications and correspondence to third parties, on its website and social media, brochures and other media that may be consulted by third parties.
Article 10: Liability
10.1 Refracted shall perform the services to the best of its ability and with the care that may reasonably be expected of it, taking into account the information provided to it by the Client. Refracted is therefore only bound to a best
efforts obligation (“inspanningsverbintenis”).
10.2 Refracted is only liable for the intentional infliction of damages to the computer systems of the Client, the intentional access to information systems to which no access was granted and for its gross negligence.
10.3 Subject to any provisions to the contrary contained above, to the extent that Refracted is dependent on the cooperation, services, goods and supplies of third parties in the performance of its obligations, it shall not be liable for any damages arising from the actions or faults of said
third parties.
10.4 Subject to any conflicting provisions set forth above, Refracted’s liability under these general terms and conditions (whether for breach of contract, tort, or any other cause) shall be limited to a recovery in kind (“uitvoering in natura”). If no further recovery in kind is possible, the liability of Refracted shall be limited to the amount covered by the professional liability insurance and/or the civil liability insurance of Refracted. If, for any reason whatsoever, no cover under the professional
liability insurance and/or the civil liability insurance is provided, each liability claim in principal, interest and costs is limited to the amount that the Client paid for the services performed pursuant to the agreement during the six (6) months preceding the claim in question. In no event shall the total compensation for direct losses or damages under
any agreement exceed EUR 25,000.00.
10.5 In no event shall Refracted be liable for any indirect, intangible, special, consequential or incidental damages (including, without limitation, damages for loss of use of facilities or equipment, loss of income, loss of data, loss of profits or goodwill) whether or not Refracted has been (a)
advised of the possibility of such damages or (b) is
negligent.
10.6 Refracted is in no event liable for compensation of damage caused by third-party software and/or hardware, or by any other element present in the computer systems and/or network infrastructure of the Client, of which Refracted was unaware prior to the performance of the services. Damages within the meaning of this clause 10.6
shall be understood to mean: the damages arising from the transfer, modification, deletion, rendering unusable and/or inaccessible and the unintentional addition of data stored on the systems of the Client.
10.7 The Client is liable for and shall fully indemnify and hold harmless Refracted for all claims, losses, costs and liabilities of third parties (including employees, contractors or suppliers) related to or arising out of the performance of
the agreement.
10.8 The Client only has a right to compensation after it has given Refracted a formal notice of default in this regard by means of a registered letter, and provided that this registered letter is sent within a period of ten (10) days of the Client becoming aware of the alleged damages-causing fact.
10.9 Refracted will never incur any liability if it is unable to fulfil its obligations due to force majeure, in the meaning of clause 11 of these general terms and conditions. As long as the event of force majeure lasts, all obligations of Refracted and the Client are suspended.
Article 11: Force majeure
11.1 Force majeure – this is any unforeseeable event that occurs beyond the control of one of the parties and that makes the performance of the agreement temporarily impossible – suspends the performance of the agreement. If the event of force majeure exceeds a period of three (3) months, each party shall be entitled to terminate the agreement with immediate effect, without any indemnification obligation of any kind.
11.2 Refracted and the Client undertake to notify the other party without delay as soon as a case of force majeure arises and as soon as the case of force majeure ceases to
have effect
Article 12: Termination
12.1 In the event of an early termination of the agreement by the Client, for any reason other than those mentioned below in clause 12.2 of these general terms and conditions, the Client shall indemnify Refracted for its expenses, services rendered and loss of profit, which shall be fixed at a flat rate of 50% of the amount of the work not
performed, without prejudice to Refracted’s right to prove higher damages actually suffered.
12.2 Each party is entitled to terminate the agreement without prior judicial intervention, by sending a registered letter, if the other party breaches a material obligation, and provided that a period of 30 days has lapsed since the other party was formally notified thereof but has not
remedied the default. In the event of termination for breach on the part of the Client, Refracted shall be entitled to liquidated damages equal to 50% of the agreed price for the Order, without prejudice to Refracted’s right to prove higher damages.
12.3 Refracted shall be entitled to terminate the
agreement, with immediate effect and without prior judicial intervention, upon the death of the Client, if the Client is a natural person, or if the Client becomes insolvent or enters into liquidation, files for a petition in bankruptcy, has been declared bankrupt or has filed a voluntary petition for proceedings in temporary relief of creditors (“gerechtelijke reorganisatie/réorganisation judiciaire”), provided, however, in the latter case, that the Client commits a material breach of its obligations under the agreement and has not confirmed within fifteen (15) calendar days
following receipt of a request by Refracted to that effect, that it will continue to perform the agreement and honour all of its obligations thereunder.
Article 13: Confidentiality
13.1 Refracted and the Client undertake reciprocally to maintain the confidentiality of all data and information about each other’s identity and organisation, clients, personal details, data and services that they became aware of prior to and during the performance of the agreement.
13.2 This confidential obligations does not apply to data and information, as referred to in clause 13.1 of these general terms and conditions, (i) if the data and information are – or become – become legally and publicly available to Refracted or the Client without breach of these general terms and conditions, (ii) if the data and information were already in the receiving party’s possession at the time of its disclosure by the other party, or (iii) if the disclosure is required under any relevant law, regulation or order of the court, provided that the other party is given prompt notice of such requirement or such order. The scope of such disclosure should in any case be as limited as possible.
13.3 This confidentiality obligation shall apply during the agreement and for a period of five (5) years as of its termination.
Article 14: Non-poaching
14.1 During the performance of the agreement and for a period of twenty-four (24) months after its termination, the Client and its appointees are not permitted to enter into any direct or indirect business, employment or other similar relationship with an employee, worker or appointee of Refracted, except with the prior and express written consent of Refracted.
14.2 In the event of a breach of this clause, the Client shall pay to Refracted liquidated damages equal to twelve (12) months of the employee’s gross wages, or 12 months of gross compensation if the employee is self-employed, as paid by Refracted.
Article 15: Protection of personal data and information exchange
15.1 Refracted complies with applicable data protection legislation, including the General Data Protection Regulation 2016/679 (“GDPR”). A copy of its privacy policy is available on its website. Refracted shall not process any personal data on behalf of the Client.
15.2 The Client bears responsibility for the accuracy of the personal data that it provides to Refracted, and undertakes to comply with all applicable data protection legislation, including the GDPR.
Article 16: Modification of general conditions
16.1 Refracted reserves the right to unilaterally amend these General Terms and Conditions, on the
understanding that the amended conditions will only apply to a subsequent offer or order. The version that is in force at the moment an order is placed by the Client or an offer accepted, will be applicable to the legal relationship that arises from that order or offer.
Article 17: Severability
17.1 If any provision (or part of any provision) of these general terms and conditions is unenforceable or conflicts with a provision of mandatory law, this shall not affect the validity and enforceability of the other provisions of these
general terms and conditions or the validity and
enforceability of that part of the provision in question that is not unenforceable or conflicts with a provision of mandatory law. In such an event, the parties shall negotiate in good faith to replace the unenforceable or conflicting provision with an enforceable and legally valid provision that most closely matches the purpose and intent of the original provision.
Article 18 Jurisdiction clause and applicable law
18.1 These General Terms and Conditions as well as any agreement between Refracted and the Client are governed by Belgian law.
18.2 The courts of the district of Antwerp, division Antwerp, have exclusive jurisdiction over all disputes, controversies and claims.