ARTICLE 1 – DEFINITIONS
The terms used in these terms and conditions have the following meanings:
Client: the natural or legal person with whom the agreement is concluded.
Telsmart: brand of The Smart Group BVBA, with registered office at Torhoutsesteenweg 236, 8210 Zedelgem with company number BE0554.665.992.
Service: the entirety of the services provided by Telsmart for which the Customer has entered into an Agreement with Telsmart.
Agreement: the agreement between the Customer and Telsmart consists of (a) the order form and any appendices, (b) the general terms and conditions, (c) the AUP, (d) the license agreement and (e) the rental agreement concluded if applicable.
Each document is an integral part of the Agreement.
Renting agreement: agreement between the Client and the renting company. AUP: the acceptable use policy, part of the general terms and conditions.
License agreement: agreement that frames the use of the telephone exchange application, part of the general terms and conditions.
Licensor: Telsmart
Licensee: the Customer
User license: license per IP telephone for the PBX application.
Invoice: the descriptive statement of costs and fees relating to the services, products or license rights provided or to be provided by Telsmart.
LOA: refers to the document by which the customer gives Telsmart a mandate to port its landline telephone numbers to Telsmart, with the result that the customer’s contract with the donor operator regarding these landline numbers will be terminated.
VoIP operator: the Belgian, European or international operator with whom Telsmart has concluded an agreement for the purchase of call minutes.
Nomad number: numbers that serve as temporary call forwarding. These numbers have no geographical character and therefore no necessary connection with an address/place where they are used.
Premium number: premium services recognizable by special numbers starting with 090 or 070.
ARTICLE 2 – OBJECT
2.1 This document determines the general terms and conditions for the provision of services and sale of products by Telsmart to the Customer. By subscribing to the Service or purchasing a product, the Customer expressly accepts, to the exclusion of its own terms and conditions, the provisions of Telsmart’s general terms and conditions. The Client acknowledges that it has been sufficiently informed about the characteristics of the VoIP services and that it has knowledge of the content of the general terms and conditions and that it has received and accepted them.
2.2 Any deviation, addition or amendment to these terms and conditions is only valid if expressly agreed and stipulated in writing.
2.3 Telsmart has the right to change these terms and conditions at any time. Amendments shall apply to Agreements already concluded and shall enter into force by operation of law thirty (30) days after publication, or publication on the website or at any other time specified in the announcement or publication.
2.4 Telsmart has the right, without being liable to pay any compensation, to refuse to enter into an agreement, to terminate, suspend or dissolve an existing agreement on the basis of the following non-exhaustive reasons:
2.5 The customer undertakes to provide Telsmart with all data necessary for the conclusion of the contract and to immediately inform Telsmart of any change in its contact and personal data.
ARTICLE 3 – SERVICES
3.1 Telsmart will endeavor to provide the agreed Service(s) in accordance with the applicable standards in this regard. The Service(s) are described in the order form or Agreement.
3.2 Delivery and/or execution periods are always indicated for information purposes only. Delay in delivery, placement or execution is not a reason to dissolve the agreement or to claim damages. In the event that the ordered goods or services cannot be delivered for reasons beyond the control of Telsmart, no compensation can be claimed.
3.3 If the Customer or User notices or suspects that third parties have gained access to the Service in an unlawful manner, for example by using the password of the Customer and/or User, he is obliged to report this immediately to Telsmart.
Telsmart is not liable for any damage resulting in unlawful or irregular use of the Service, nor for the unlawful or irregular use of the Service by third parties. When using VoIP systems where extensions need to be protected by passwords, it is the Client’s responsibility to protect them adequately.
3.4 Telsmart provides the Client with a technical assistance service, which can be accessed during office hours by calling 02/888.33.00.
3.5 At the time the Customer makes a call, his call number will appear on the screen of the called person’s device, if the called person’s device has that functionality. If the number of the callee is with another national operator, the call number will be transmitted if there is a mutual agreement with the operator concerned. In case of call forwarding, the caller’s number is forwarded to the forwarded number.
The Customer may deviate from the aforementioned permanent choices on a call-by-call basis to the extent that its device supports this functionality.
3.6 The Client may request that the number assigned to him be transferred from another operator to the network of Telsmart subject to the signing of an LOA or from Telsmart to the network of another operator, with the exception of so-called nomad numbers.
To do so, the Client shall contact the operator to whom he wishes to port the number. This operator will take the necessary steps for this transfer. In the event of a number porting, Telsmart will make every effort to ensure that this number porting runs as smoothly as possible. However, the transfer may not be possible for technical reasons.
3.7 The Client acknowledges that the VoIP Service will not be used nomadically. Thus, the Client shall not move or activate his device in a place other than the place specified in the order form, unless agreed in writing.
3.8 The Client expressly acknowledges that the VoIP Service does not grant access to the emergency services with the geographical or nomadic telephone number assigned to it. Telsmart is not responsible for any injuries, damages or costs incurred as a result of the fact that emergency services cannot be reached (in time) or have carried out a pointless relocation.
3.9 The Client is obliged to choose a geographical number in the telephone area where he resides or has his place of business. In the event that this condition is not or is no longer valid, Telsmart has the right to assign another number where the customer has his residence or place of business. The place of residence or establishment must be located on the territory of Belgium. The Client must be able to prove the place in which his residence or place of business is located. In any case, Telsmart cannot be held responsible for any damage related to deviations or changes in places of residence and business.
3.10 Telsmart has the right to change the number assigned to the Customer in the event of a change in the numbering plan or a decision of the supervisory authority. In such a case, Telsmart will make every effort to limit the impact on the Customer as much as possible. In this situation, the Customer cannot claim compensation from Telsmart.
3.11 The duration of a call to a Premium Number with prefix 090X and billing per minute is automatically limited to ten (10) minutes. Calls to a Premium Number with prefix 0905 will be blocked if the cost for the caller exceeds an amount of €50 (VAT included).
3.12 The Client is entitled to have his data listed in the white pages free of charge, as provided for by law. If the Customer indicates this on the LOA, Telsmart will pass this information on to the VoIP operator.
3.13 In accordance with the applicable legislation, Telsmart will provide the VoIP operator with the Client’s data as well as any changes thereto, so that the VoIP operator can in turn transmit this to the publishers of directories and providers of telephone enquiry services, except in the case of a private number or if the Client has explicitly stated that it does not wish to be included in it.
3.14 The Client is responsible for the accuracy of the data it communicates to Telsmart. Any modification of data will be communicated as soon as possible to the VoIP operator, who in turn must include it in the white pages database in the directory of the telephone enquiry service.
3.15 The Customer who receives malicious calls may report this to Telsmart. Telsmart will ask the VoIP operator to identify the number from which he was called. If the identification is technically possible, the VoIP operator will ask the holder of this number to stop these calls. However, if the Client continues to receive malicious calls, he may contact the Office of the Ombudsman. At the latter’s request, the identity and address of the holder of the number from which the malicious calls were made, if received from the VoIP operator, will be communicated by Telsmart to the Office of the Ombudsman, with a view to their disclosure to the Customer.
ARTICLE 4 – RATES
4.1 All our quotations are without obligation. Quotations are valid for thirty (30) days, unless otherwise stated in the quotation. By accepting an offer, quotation request or subscribing to an order form, the Customer accepts the applicability of Telsmart’s general terms and conditions. Quotations that are drawn up on the basis of supplied or specified quantities, sizes or data and are accepted by the Client are only binding insofar as the quantities, sizes or data specified in these quotations correspond to reality. Anything that is not provided for in the quotation and is carried out and accepted by the Client entitles the Client to a price corresponding to this additional work.
4.2 Depending on the Service, the costs include a subscription fee, a license fee, set-up, installation and consumption costs. The rates as stated on the website, in tariff plans or in other contractual documents such as a quotation, are exclusive of VAT, unless otherwise stated. The rates listed on the website take precedence over the paper version.
4.3 The duration of national and international calls is measured in seconds. The duration of a connection is understood to be the time between the moment when the caller picks up to the moment when the caller joins in.
4.4 Installation costs are included, unless otherwise agreed. However, a flat rate of 250€ will be charged if no one is present on the day of installation, without at least one (1) working day in advance in writing.
4.5 Without prejudice to the Customer’s right of renunciation within the framework of the Commercial Practices Act, Telsmart may, by operation of law and without prior notice, claim compensation fixed at a flat rate of twenty percent of the price of the cancelled order if the Customer cancels an order – total or partial – with a minimum cost of €250.
ARTICLE 5 – PAYMENT CONDITIONS AND FINANCIAL GUARANTEE
5.1 The invoice will be sent to the Client by e-mail. The invoices can contain an overview of the calls made to all recipients and/or an overview of the subscriptions.
5.2 The products will be invoiced as shipped or installed. The services provided are billed and invoiced monthly. The first invoice for the provision of services can be invoiced quarterly or half-yearly depending on the Client’s consumption.
5.3 All invoices are payable within fifteen (15) calendar days after issue, unless otherwise agreed in writing. All invoices are paid by SEPA direct debit.
5.4 Complaints will no longer be accepted eight (8) days after delivery, placement, execution or invoice date; They must be made in writing by registered letter, failing which they will be inadmissible, and do not suspend the obligation to pay. In the absence of a protest by registered letter, the invoice is irrevocably and unconditionally deemed to have been accepted.
5.5 In the absence of effective payment on that day, interest at 10% per annum will run by operation of law and without notice of default until the date of effective payment. In that case, compensation equal to 10% of the total invoice amount is also due, with a minimum of € 25,-. In the event of non-payment on the due date of one invoice, all invoices become immediately due and payable and e.g. Telsmart has the unconditional right to suspend its services until full payment of the amount due.
5.6 The Client who remains in default shall bear the costs of the notice of default and the investigation costs incurred by the bailiff and/or lawyer, as well as the costs of reminders and correspondence by registered letter by Telsmart and/or its advisors.
5.7 Telsmart may also recover from the defaulting Customer the costs of rejection in the event of refusal of deduction by the Customer’s banking institution.
A deletion of the Customer’s SEPA direct debit may give rise to suspension or discontinuation of the service. Telsmart is entitled to suspend the performance of part or all of the services until full payment of all amounts owed by the Customer. Telsmart is entitled to deactivate the Customer’s service(s) fifteen (15) calendar days after sending the first notice of default, deactivation invoiced at the applicable rate. The Client may use the services again after full payment of the amounts due, damage clauses, expenses and the payment of any amounts to be paid in advance in relation to the reactivation of the service.
5.8 Unless otherwise agreed or authorized in writing, no compensation can be made between claims or amounts owed to Telsmart and those that the customer believes it can claim from Telsmart.
5.9 If the Client does not regularise his situation before the end of the month following the suspension of the services, this is a serious shortcoming that justifies the termination of the contract at his expense.
In the event of termination, the Client will owe irreducible compensation equal to the amounts it owed in the period of three (3) months prior to the suspension of the service, all subject to the payment of higher damages, if proven.
5.10 Telsmart is entitled to refuse to grant a new subscription to a Customer whose account has remained debited under a previous agreement.
5.11 If Telsmart decides to reactivate the Customer, a reactivation fee of 25 euros is due.
5.12 The Customer undertakes to immediately inform Telsmart of any change in its data (such as, for example, changes in the articles of association, address and account number).
5.13 Insofar as the Agreement includes the delivery of equipment, Telsmart or the renting company thereof remains the owner until such time as the Customer has paid Telsmart or the renting company all that he owes under the Agreement, such as the full payment of the principal sum, interest, costs and taxes. In case the equipment is rented through a rental agreement, the renting company remains the owner of the rented equipment during the rental period. At the end of the rental period, the equipment must be returned to the renting company or its representative (i.e. Telsmart). Subject to Telsmart’s approval, the customer has the right to purchase the equipment after this rental period, subject to payment of the final sum, equal to one (1) month’s rent to Telsmart. The payment of this conclusion does not affect the payment of the (user) licenses to Telsmart.
5.14 The payments made by the Client will be charged in the first place until payment of interest and costs due and in the second place on the invoices that have been unpaid for the longest period of time, even if the Client states that the payment relates to a later invoice.
5.15 Telsmart has the right to change or index the rates for the Services or Products. Changes also apply to agreements that have already been concluded and will be communicated to the Client no later than one (1) month prior to their entry into force by e-mail and/or a publication on the website. Indexation or modification of the rates, insofar as they are not substantial, are not grounds for termination or termination of the Agreement.
ARTICLE 6 – OBLIGATIONS OF THE CLIENT AND/OR USER
6.1 The Services and Products will be used with due care in accordance with the applicable laws and regulations, the terms of the Agreement, the License Agreement, the AUP and the general rules of propriety.
6.2 The Client warrants that it has and will retain all licenses and/or permissions required to receive the Services and use the equipment.
6.3 The Client shall ensure the proper storage of the equipment as a normal and prudent custodian. He authorizes Telsmart to remotely monitor and control the delivered equipment at any time. Under no circumstances can the service and equipment be moved or adapted without the intervention of Telsmart. The Client is liable for any damage to the service and equipment or to the network resulting from its acts or omissions.
6.4 The use of the Service may entail risks of intrusion by third parties or viruses for the Client’s IT system, which will take the necessary measures to ensure that no other person accesses the Services without his consent. He is responsible for the protection of his data and software.
Telsmart is entitled, on its own initiative or at the request of the competent authority, to publish, remove, modify or move the object and content of the Service, if the AUP is not complied with or ordered to do so.
6.6. The Customer and/or User is not permitted to perform processes or actions that he may reasonably suspect may adversely affect Telsmart and/or the use of the Service.
6.7 The Client will pay all taxes, including VAT, by whatever name.
6.8 The violation of the provisions of Article 6 constitutes a serious contractual shortcoming, which justifies the termination of the Agreements at the expense of the Client.
6.9 The Customer shall indemnify Telsmart in any event against any loss, damage, costs, or expenses resulting from or arising from a breach of the obligations set out in this Article 6 and/or against claims by third parties arising from the use of the Service that constitute a breach of this Article 6.
ARTICLE 7 – HARDWARE AND SOFTWARE
7.1 The goods, even freight paid, travel at the Customer’s risk from the moment they leave our warehouses.
7.2 The warranty of a/or installed hardware and/or software sold by Telsmart includes, without prejudice to the legal provisions, the standard warranty provided by the manufacturer/software author within the limitations indicated by him and this from the purchase/start of the (user) license.
7.3 The Client has a personal, non-transferable license to use the software and the associated user documentation that Telsmart makes available. Telsmart and its licensors retain at all times all intellectual property rights, including copyrights, with respect to the software, documentation and media on which the software is made available. By using the software and/or the equipment, the Customer and/or user agrees to the license terms associated with the software and the user documentation. The Client is not permitted to copy the software and associated user documentation for any purpose other than making a backup. Customer is not permitted to make or cause to be made any changes or additions to the Software and the Documentation itself, nor to distribute all or parts of the Software and Documentation in any form whatsoever to third parties. The Customer and/or User shall not remove or alter the characters that determine the ownership and origin of the products.
ARTICLE 8 – TERM AND TERMINATION
8.1 The Agreement enters into force after the Parties have signed it or the application has been accepted by Telsmart and, unless otherwise agreed, is of indefinite duration.
Depending on the duration of the renting agreement, subscription fees and call costs will be charged by Telsmart during the term of this rental agreement. After the renting agreement has come to a regular end, (user) licenses will also be charged, based on the license agreement.
8.2 The Agreement with regard to the fixed line subscription fees and calls, as well as internet, IT licenses, etc. can be terminated by the Client at any time in writing, without judicial intervention and/or without payment of any (damage) compensation, subject to a notice period of three
(3) months. This does not affect the current rental agreement.
ARTICLE 9 – LIABILITY
9.1 The provision of the Service(s) is an obligation of means, whereby Telsmart’s responsibility is in any case limited to the provision of the agreed Service up to the connection point to the Customer’s network.
9.2. Telsmart does not guarantee the error-free operation of certain alarm systems, telephone exchanges and other specific terminal equipment that are connected to or with the Telsmart network.
9.3 Telsmart does not provide any guarantee with regard to the functioning of the Service. The failure or reduction of the quality of the Service – except in the case of intent or gross negligence on the part of Telsmart – cannot give rise to any liability.
9.4 Under no circumstances can Telsmart, including its employees, agents, subcontractors and suppliers, be held liable for, among other things:
9.5 Telsmart is in no way liable for any indirect and/or incidental or consequential and income damage, such as, among other things, redundant or technically unemployed personnel, commercial damage, loss of data, loss of turnover, loss of profit, loss of opportunity, of customers and/or of assignments, reduction of commercial prospects, increase in costs, loss of expected savings, even if foreseeable.
9.6 The Customer shall indemnify Telsmart against all costs, fees, damages, claims, expenses and procedures relating to claims of third parties that are caused by the Customer’s acts, errors or omissions.
9.7 In any case and regardless of the cause, Telsmart’s liability is limited to the amount of the last invoice for a period of one (1) month prior to a claim.
ARTICLE 10 – SUSPENSION AND DISSOLUTION OF THE AGREEMENT
10.1 Telsmart has the right by operation of law to suspend the delivery of the Service, a product or performance in the event of non‐compliance with the Agreement by the Customer.
10.2 Any non-compliance with the Agreement by the Customer constitutes a serious shortcoming that can be regarded by Telsmart as a reason for termination or dissolution of the Agreement.
The following shall in any case be regarded as a serious shortcoming that justifies the termination of the agreement at the expense of the Client:
In the event of dissolution/termination at the expense of the client, the client will owe a severance fee, equal to the sum of the invoices during a period of 3 months before the date of dissolution/termination.
10.3 If, for whatever reason, the customer unilaterally, in whole or in part, indicates that he does not wish to execute or terminate the agreement, Telsmart will owe Telsmart a fixed non‐traceable compensation by operation of law equal to the amounts he owed in the period of three (3) months before suspension or
the termination of the service, all subject to the payment of a higher compensation for damages, if there is reason to do so.
ARTICLE 11 – FORCE MAJEURE
11.1 In the event of a strange cause or force majeure, Telsmart is entitled to suspend or unilaterally cancel its obligations, after notifying the customer. This suspension or cancellation does not give rise to any right to compensation.
Neither party shall be liable for any damage suffered by the other party as a result of force majeure.
11.2 Force majeure is understood to mean any unforeseen event, beyond the control of a party, as a result of which the execution of the Agreement cannot be carried out in whole or in part or temporarily, or which becomes so burdensome/or disproportionately expensive that compliance with the Agreement cannot reasonably be required from the other party, and this also on the part of Telsmart’s suppliers. The following are considered to be extraneous causes or force majeure: strikes or lock-outs, company blockades, war, epidemic, breach of contract or stock shortage by Telsmart’s suppliers, abnormal weather conditions, fire, natural or other disasters, legal or administrative restrictions, government decisions that affect the performance of the agreed obligations, the malfunctioning or unavailability of the internet, malfunctions in the network or technical failures in the Customer’s or third parties’ communication infrastructure.
ARTICLE 12 – TRANSFER – SUBCONTRACTING
12.1 The Customer shall not transfer its rights and obligations arising from the Agreement, in whole or in part, to third parties, except with the prior and express written consent of Telsmart.
12.2 Telsmart is entitled to transfer rights and obligations arising from the Agreement in whole or in part to third parties without the consent of the Customer.
12.3 Telsmart may instruct subcontractor(s) to perform all or part of the Agreement without releasing itself from its contractual obligations towards the Customer.
ARTICLE 13 – PROTECTION OF PRIVACY
13.1 The personal data provided by the Client will be included in Telsmart’s files. Telsmart is entitled to process the Customer’s personal data for the following purposes: the provision and invoicing of telecommunication services, the management of the relationship with the Customer, the interconnection and invoicing with other operators, the management of disputes, market studies, the transmission to the VoIP operator for the compilation of telephone directories, enquiry services and directories with URL addresses, detecting fraud and infringements, verifying the quality of the service, sending commercial information to the Client and conducting campaigns about Telsmart’s products and services and contractually affiliated companies.
Personal data will not be disclosed to third parties except for the aforementioned purposes. The Customer may object to the use of their personal data for direct marketing purposes by contacting customer service. Data relating to private numbers will not be used for commercial purposes under any circumstances.
13.2 The Client’s data will be kept for the retention periods provided for by law. Telsmart does not normally pass on data to third parties, except in order to comply with legal obligations or in the event of an explicit request from judicial authorities or police services.
13.3 The Client has the right to have his personal data corrected.
ARTICLE 14 – OMBUDSMAN SERVICE FOR TELECOMMUNICATIONS
14.1 Any complaints should be addressed to Telsmart’s customer service. If the Client is not satisfied with the handling of his complaint, he can contact the Telecommunications Mediation Service, Koning Albert II—laan 8 box 3, 1000 Brussels. tel: 02/223.09.09, fax: 02/219.86.59;
E-mail: klachten@ombudsmantelecom.be , website : www.ombudsmantelecom.be
14.2 A complaint to the Telecommunications Ombudsman Service is only admissible if the Client has addressed a prior complaint to Telsmart.
14.3 The Telecommunications Ombudsman Service may refuse to deal with a complaint if it relates to facts that occurred more than one (1) year before the complaint was filed.
14.4 The investigation of a complaint will be terminated when an appeal has been lodged with the court.
ARTICLE 15 – ADMISSIBILITY – APPLICABLE LAW – JURISDICTION
15.1 Any dispute in connection with the validity, payment, delivery, conclusion, interpretation, execution or dissolution of the Agreement must be instituted by the Client, under penalty of inadmissibility, within a period of one (1) month after the underlying cause of the dispute has arisen.
15.2 Only the courts of the district of Antwerp, division Turnhout, have jurisdiction to hear disputes and claims in the first instance. Belgian law is applicable.
AUP : ACCEPTABLE USE POLICY
This Acceptable Use Policy (AUP) aims to ensure the responsible and ethical use by the Customer of Telsmart’s products and Services.
Telsmart has the right to make changes to the AUP. In the event of a change or modification, the Client will be informed by e-mail and/or by publication on the website.
1. BASIC PRINCIPLES
1.1 The Customer shall only use the Services and products offered by Telsmart for lawful purposes in accordance with Telsmart’s terms and conditions. Use of the Services and products in violation of Belgian, European or international legal or regulatory provisions is prohibited. The following are prohibited, among other things: the transmission and reproduction of copyrighted material without the permission of the copyright holder or licensee and of material that is considered contrary to public order or morality.
1.2 Telsmart is entitled to remove material or data and to deny certain users access to the Services if the intended use or purpose is not in accordance with the AUP.
1.3 The Client shall indemnify Telsmart, such as principal, interest and costs, for all complaints submitted by third parties on the basis of an illegal or harmful use of the Services by the Client.
2. THE NETWORK
2.1 The Client acknowledges that Telsmart cannot monitor the content of the information exchanged through its Services and products and therefore does not bear any responsibility of any kind for this.
2.2 If the Customer connects to other networks via the Services and products of Telsmart, he is obliged to comply with the codes of conduct of this network.
2.3 The Customer shall comply with the Internet protocols and standards.
2.4 It is not permitted to compromise any user’s authentication or security of a host, network or account (‘hacking’), or to intervene in any way in the provision of services to a user, host or network that prevents them from accessing the Service (‘denial‐of‐service attacks’).
2.5 Any use or application that overloads the network is deemed to be unauthorised use of the services or the network. Multicast over IP other than through Telsmart’s intervention and coordination is not permitted and may result in disruption or dysfunction.
2.6. Telsmart is obliged to cooperate with regularly ordered judicial investigations.
3. ELECTRONIC MESSAGING
Telsmart and the Customer shall refrain from, among other things:
4. COMPLAINTS
4.1 Complaints regarding violations of the AUP can be reported to Telsmart at the following address: Torhoutsesteenweg 236, 8210 Zedelgem.
The online reporting point where the Customer, as an internet user, can report crimes on or via the internet is eCops on www.ecops.be.eCops is an initiative of the Federal Computer Crime Unit of the Federal Judicial Police (FCCU), the Federal Public Service Economy, SMEs and Energy. eCops ensures that the report is investigated by the competent service.
LICENSE AGREEMENT
1. Right of use
1.1 The licensor grants the licensee a non‐exclusive and non‐transferable right to use the software on the IP telephones and related equipment supplied and installed by Telsmart, with a view to obtaining the telephone exchange application, as stated in the underlying Agreement concluded.
1.2 The purpose of the licensor’s software is to transform IP telephones into intelligent IP telephones which take over the basic functions of a traditional telephone exchange
1.3 The user right applies to any change or extension of hardware configuration, provided that a change or extension of the license is permitted in advance and in writing and any additional charge is paid.
1.4 With regard to the configuration that the customer receives from Telsmart, the signed order form in this regard shall be deemed to be proof of acceptance and as a supplement to the license agreement.
1.5 Unless otherwise stipulated, the general terms and conditions also apply to this license agreement.
2. Warranties
2.1 Telsmart guarantees the usability and suitability of the software supplied by it.
2.2 Usability means that the software is free of programming errors that make the use of the telephone exchange application completely impossible, all under the proviso that the software is used according to the instructions of Telsmart and on the hardware configuration as described in the order form according to the regulations and any manuals of the hardware in this regard.
2.3 Subordination means that the software can be applied within the limits of its application possibilities and conception.
In order to be able to assert any warranty claims, any deviations from the software must be reported by registered letter within fifteen (15) days of delivery.
2.5 In such a case, proof will have to be presented that the alleged deviations are not the result of incorrect or incorrect manipulation by the user and that the hardware configuration functioned flawlessly.
2.6 Telsmart has the right to determine any deviations communicated to the licensee or user during the agreement. If these determinations are made impossible, the guarantees will lapse.
2.7 If it turns out that a telephone exchange application does not function properly, Telsmart or its subcontractor may proceed to network optimisation at the Client’s premises and reinstall the telephone exchange application on the Client’s existing or new devices. If the customer prevents this, Telsmart cannot be held responsible for the incorrect functioning of the telephone exchange application.
2.8 If, upon checking any discrepancies, it is established that there are no discrepancies, the associated hourly wages and costs will be charged to the licensee or user.
2.9 The warranties are at all times limited to the removal of any deviations or the replacement of the software, as set out above.
2.10 Deviations that are situated outside the aforementioned warranty period will be removed as far as possible against reimbursement of the normal hourly rates in the IT sector.
2.11 Outside of the warranty period and for anything not covered by the warranty, Licensee agrees to use and apply the Software at its own risk, charge and responsibility and to bear the consequences thereof without any possibility of recourse against the Licensor for any reason whatsoever.
3, Ownership
3.1 The Licensee is aware that Telsmart has a right to exploit the PBX Application and that the full right of ownership is reserved to the Author.
3.2 Licensee does not acquire any ownership rights to the whole or part of the Software. He is therefore not free to dispose of the software and its accessories.
3.3 Licensee is prohibited from using, debugging, listing, converting or copying the software on hardware configurations other than those provided by Telsmart.
3.4 The Licensee undertakes to retain and retain all features and accessories of the Software as a diligent custodian. Trade secrets, analysis and techniques related to the software will not be transferred, even after the end of the agreement.
3.5 However, if information relating to the Software is disseminated, the Licensee shall make every effort to retrieve the information disseminated or reimburse the Licensor for any costs incurred in recovering it.
3.6 For any infringement of the author’s property rights or Telsmart’s right of exploitation, the licensee shall owe irreducible damages equal to the full amount of all its licenses over a period of sixty (60) months, without prejudice to Telsmart’s right to claim higher damages, if there is reason to do so.
4. Assignment
4.1 Except with the written consent of Telsmart, the transfer of the license is not permitted.
5. Duration of license
5.1 In principle, the duration of the licence agreement is the same as the duration of the initially concluded renting agreement with the Client/licensee and Grenke Bvba or BNP Paribas Leasing Solutions.
5.2 After the initial period of renting, a license agreement of indefinite duration is concluded by operation of law, within the framework of which Telsmart is entitled to invoice the monthly license fee(s) to the Customer.
5.3 The License Agreement can only be terminated after the expiry of the initial Annuation Agreement subject to termination by registered letter, taking into account a notice period of three (3) months. The cancellation should not be frivolous.
5.4 If the license agreement is terminated for whatever reasons, the licensee will return the software and its accessories, including external memory carriers, to Telsmart within 5 days after the end of the agreement, under penalty of compensation of 250 euros per day of delay.
6. License fee/renting
6.1 The IP telephones, related equipment and user licenses supplied by Telsmart are the subject of a rental agreement concluded by the Client/licensee with either Grenke Bvba or BNP Paribas Leasing Solutions.
6.2 On the basis of the renting agreement with either Grenke Bvba or BNP Paribas Leasing Solutions, the customer/licensee will receive a quarterly or monthly invoice from the latter with regard to the rental of IP telephone(s), related equipment and the software (user license(s)) for the period that the renting agreement was entered into.
6.3 During the initial period of the rental or rental, the customer will only receive a monthly invoice from Telsmart for the subscription, fixed telephony and call charges.
6.4 At the end of the renting agreement in accordance with the terms and conditions of the renting agreement with either Grenke Bvba or BNP Paribas Leasing Solutions, the Client/licensee must normally return the rented equipment and software to the renting company.
6.5 Subject to Telsmart’s approval, the customer has the right to purchase the equipment after this rental period, subject to payment of the final sum, equal to one (1) month’s rent to Telsmart. The payment of this conclusion does not affect the payment of the (user) licenses to Telsmart. After the end date of the initial rental agreement, Telsmart will invoice the User Licenses to the Customer in addition to invoicing subscription fees and call charges.
Different Terms and Conditions for Premium Numbers
1. GLOSSARY PREMIUM ISSUES
The terms used in the Premium Number Terms are defined as follows:
2. PROCEDURE FOR CONCLUDING A CONTRACT AND DURATION
2.1 When applying for a Premium Number Service, the Client will communicate his company number. If the Customer is exempted from registration in the Register of Legal Entities (RPR) and/or subject to the VAT system, he will provide Telsmart with proof of this.
2.2 The Client shall specify the type of information it wishes to make available to the public.
2.3 If the end recipient is a third party, the Client shall give written consent from the third party before the Premium Number Service will be activated.
2.4 Telsmart may refuse to comply with a Customer’s request if the Customer does not accept these terms and conditions.
2.5 The Agreement is concluded for a period of one (1) year, which commences on the date of signature of the Agreement. The Agreement shall be tacitly renewed for a further period of one (1) year, unless terminated by either party at least two (2) months before the end of the term.
3. PREMIUM NUMBER SERVICE AND OBLIGATIONS OF TELSMART
3.1 A Premium Number Service enables the Client to make information accessible to the User(s) via the public telephone network. The amounts collected by Telsmart in respect of traffic destined for a Premium Number marketed by a Customer will be partially transferred to the Customer in accordance with the conditions set out below.
3.2. Telsmart cannot guarantee that a User will be able to access the Premium Number Service. Accessibility depends on the terms of interconnection agreements concluded between operators.
3.3 The duration of a call to a Premium Number with prefix 090X and billing per minute will automatically be limited to a maximum of ten (10) minutes. Calls to a Premium Number
with prefix 0905 will be blocked if the cost to the caller exceeds an amount of 50 € (VAT included).
3.4 Telsmart draws the Customer’s attention to the fact that if this facility is offered by the access operator, the User may block the calling of Premium Numbers via its telephone line.
4. ADDITIONAL CUSTOMER OBLIGATIONS for a premium NUMBER SERVICE
4.1 The Client undertakes to subscribe to the Acceptable Use Policy (AUP) and to comply with all its provisions. The AUP,as well as its subsequent amendment,was an essential part of the Agreement.
4.2 The Client shall ensure that the information made available to the User via a Premium Number does not violate the provision and the Criminal Code, public order or morality. A breach of this obligation constitutes a serious breach of contract.
4.3 At Telsmart’s simple request, the Customer shall provide an unconditional bank guarantee in favour of Telsmart upon first request.
5. MINIMUM USAGE PER PREMIUM NUMBER
5.1 If a Premium Number is not used for a period of one
(1) month, Telsmart is entitled to cancel that Premium Number after notifying the Customer by e‐mail.
6. PAYMENT TERMS OF PREMIUM NUMBER SERVICE
6.1 The Client shall receive a fee for each call made by a User to a Premium Number, for which Telsmart has received a fee from the Access Operator in accordance with the terms and conditions of the price list.
Telsmart will provide the Customer at regular intervals with an overview of the calls made by e-mail to the Premium Number(s) for which Telsmart has received a fee from the access operator. On the basis of this statement, the Customer will draw up and send an invoice, which Telsmart will pay within thirty (30) calendar days of its receipt.
Upon payment of the Customer’s invoice, Telsmart is entitled to deduct and offset any sum with that owed by the Customer pursuant to the execution of the Agreement. This also applies to any amount invoiced to the User, but for which Telsmart has not received any compensation.
6.2 If the operator to which a geographic number linked to the Premium Number has been assigned increases its interconnection tariffs in order to terminate the calls on its network or if Telsmart’s interconnection tariffs have been reduced without the other operator applying the same tariff reduction, Telsmart is entitled to change the applicable tariffs and/or payment terms.
If the Client does not accept the new terms and conditions, he may terminate the Agreement subject to prior written notice without notice and without compensation. The Client will not be able to claim the payment of compensation in the event of such discontinuation of the Premium Number Service.
7. SUSPENSION AND TERMINATION OF A PREMIUM NUMBER SERVICE
7.1 If Customer fails to comply with the obligations of this Agreement or any other agreement relating to a Premium Number Service, Telsmart shall be entitled to suspend all payments to Customer within five (5) business days from the date of notice of default. Telsmart will stop suspending payment to the Customer as soon as the Customer has fulfilled its obligations. In the event of a breach by the Customer of the AUP, Telsmart shall be entitled to immediately suspend the Service without prior notice.
Telsmart is entitled to deduct any amount related to violations of the AUP from the amounts due to the Customer, plus a lump sum fee of 25 € per complaint to cover the administrative costs. Telsmart is not obliged to pay the invoice of the Customer to which the violation relates.
7.2 In the event of a breach of the provisions of the AUP, Telsmart has the right to terminate the Agreement without prior notice, without the right to compensation from the Customer.
8. PORTABILITY OF NUMBERS
8.1 Telsmart will handle any request from a third party for the porting of a Premium Number that has previously been assigned to the Customer in accordance with the regulatory framework on number portability.
8.2 If the Customer submits a request to port numbers, Telsmart will comply with this request to the extent that the Customer has fulfilled all its obligations to Telsmart.