Terms and Conditions

BETWEEN THE UNDERSIGNED PARTIES:

Customer
Fonzer bv, established at Veldkant 10, 2550 Kontich, with company number 0627.815.078, here legally represented by its directors UC Company bv with permanent representative Kristof Dedeyne and The Bean Company bv with permanent representative Ben Holemans.

Hereinafter referred to as "Fonzer".
Fonzer and the Customer are hereinafter referred to separately as the "Party" and jointly as the "Parties";

WHEREAS:

Fonzer offers through a platform provider a "state of the art" cloud communication platform with related services as described in Annex 1 to this Agreement (hereinafter the "Services") for the benefit of the SME end-user market;
The Customer wishes to use the platform offered by Fonzer for the organisation of its communication process;
The Parties now wish to lay down in this agreement (hereinafter the "Agreement") the conditions for the provision of the Services by Fonzer to the Customer.

IT IS THEREFORE AGREED THAT THE FOLLOWING SHALL APPLY:

Definitions
1. Order Form: contains the specific implementation modalities of this Agreement, which are governed by this Agreement.
2. BIPT: is the abbreviation for "the Belgian Institute for Postal Services and Telecommunications", the independent institution established by the Act of 21 March 1991 on the restructuring of certain economic public companies. BIPT monitors the correct implementation of the Belgian telecommunications market and the relations between the various operators.
3. Service: the specific service that Fonzer agrees with the Customer, as stated in this Agreement and described in Appendix 1.
4. Hard Limit: the amount above which Fonzer is entitled to suspend the Services in accordance with Articles 9.1, 9.3 and 9.4 of this Agreement.
5. Agreement: means this Agreement including the Order Form and any Annexes.
6. Platform provider: is the provider of the cloud communication platform.
7. Traffic data: data concerning the use of a Service by the Customer, such as information about telephone calls received and made.
8. Advance: the advance amount that the Customer must pay when starting the Services in accordance with Article 9.1. of this Agreement.
Object
1. Subject to the terms and conditions set out in this Agreement, the Customer shall retain the Services of Fonzer and Fonzer hereby agrees to provide the Services as set out in Schedule 1 to this Agreement to the Customer.
2. In order to be able to start up the Services, the Customer shall provide Fonzer with all data necessary or required to set up the cloud communication system, such as, without limitation, the expected monthly telephone usage, the number of SIP accounts, the number of VBPX features and the telephone numbers to be ported or new. The Customer shall guarantee the correctness and completeness of the specifications and data provided by him or on his behalf to Fonzer, on which Fonzer bases its offer and on which the telephone limits as provided for in article 9.1 are calculated.
3. Unless otherwise stipulated in this Agreement, the Customer is irrevocably considered to be a professional user, acting within the scope of his professional activities. He is deemed to be in possession of the relevant know-how regarding the Services to be provided, and to employ personnel with the necessary expertise.
4. Parties acknowledge that the success of activities in the field of information and communication technology generally depends on correct and timely mutual cooperation. In order to enable Fonzer to perform the Agreement properly, the Customer shall always provide all data and/or information deemed useful, necessary and desirable by Fonzer in a timely fashion and cooperate fully. If the Customer deploys its own personnel and/or auxiliary persons as part of the cooperation in the execution of the Agreement, this personnel and these auxiliary persons shall possess the necessary knowledge, expertise and experience.
5. In the event that a customer were to purchase additional services from Fonzer after the conclusion of this Agreement, these will automatically fall under this Agreement without any addition to the Agreement being required.
Privacy
1. Fonzer shall treat the Customer's data confidentially and in compliance with the applicable legislation on the protection of privacy and the processing of personal data. The responsibility for the data provided by the Customer for use by Fonzer for its services, lies solely and entirely with the Customer. The Customer guarantees Fonzer that the content and processing of the data are not unlawful and do not violate any right of a third party or any legal and/or regulatory provision. The Customer indemnifies Fonzer against any legal claim by third parties, of whatever nature, in connection with these data or the execution of the Agreement.
2. Fonzer shall make every effort and do everything necessary to protect the data and information sent by the Customer to Fonzer as well as possible, in accordance with the current state of the art and legislation. To this end, it shall take the appropriate technical and organisational measures without being held liable for any damage due to the loss or disclosure of these data, other than the obligation of effort provided for herein.
3. The Customer acknowledges and accepts that some of his/her data must be transferred to some of Fonzer's suppliers, including the Platform Provider, in order to initiate and provide the Services. These suppliers and Fonzer are entitled to use this data in an anonymous way for statistical purposes in order to improve the Services or to comply with legal obligations. The Customer's data may be communicated to the competent authorities in the cases provided for by law. Even if the Customer has indicated that he does not want information about him to be communicated, Fonzer will provide the requested data if the emergency services ask for it or if the law obliges it to do so. Data may also be communicated to the business partners of Fonzer, to the extent that they require this data for the performance of their contractual obligations towards Fonzer.
4. Fonzer is concerned with the privacy of online communications and websites. In general, the Internet is no more or less secure than other forms of communication, including mail, facsimile transmission, and telephone service, which can be compromised. As a matter of prudence, it is advisable to assume that all online communication security systems can be compromised. Fonzer assumes no responsibility for the security of information transmitted through Fonzer's facilities or any misuse thereof.
5. Fonzer will not retain the personal data collected any longer than is necessary for the above-mentioned purposes and no longer than is required by law. It will ensure that appropriate technical and organisational measures are taken to secure the personal data.
6. If Fonzer is obliged to cooperate with a request by a competent authority to intercept or record electronic communication or to provide Customer and traffic data, Fonzer shall cooperate with this request. Fonzer is not liable for any damage, in whatever form, suffered by the Customer as a result of this cooperation by Fonzer.
7. The Customer undertakes to keep his data up to date at all times and shall immediately inform Fonzer of any changes therein. It shall provide Fonzer with all data or information useful and necessary for the proper performance of the Agreement and shall cooperate fully in this respect. Checking, changing and passing on data can be done by adapting or filling in the data on the site provided by Fonzer, for which the Customer will receive a user name and password from Fonzer. Fonzer shall under no circumstances be held liable for any damage, of whatever nature, if Fonzer has relied on incorrect and/or incomplete data provided by the Customer.
8. In performing its services under this Agreement and any other agreements with Fonzer, Fonzer processes data, including personal and traffic data, data relating to the use, communication traffic, etc. of the Customer with due observance of the applicable laws and regulations relating to the protection of privacy, in particular the Privacy Act of December 8th, 1992 (Wet tot bescherming van de persoonlijke levenssfeer ten opzichte van de verwerking van persoonsgegevens) and the General Data Protection Regulation of May 25th, 2018. For more detailed information we refer to Annex 1 here below and our Privacy Policy.
Customer responsibilities
1. Under no circumstances may the Customer make improper use of the Services of Fonzer and its suppliers. This improper use includes, but is not limited to, infringing and/or making changes to the Services as a result of which the Services of Fonzer and its suppliers (e.g. Platform supplier) could be disrupted and/or hindered, not respecting the other Customers of Fonzer and other networks of these Customers. Fonzer reserves the right to suspend and/or terminate the Agreement ipso jure, without any notice of default being required and without being liable for any compensation, with respect to any Customer who makes improper use of the network of Fonzer or of one of its suppliers in order to carry out or provoke harmful, incriminating or other negative actions against other Customers or suppliers of Fonzer and/or their network. Fonzer electronically monitors the Services to ensure that the facilities are working satisfactorily.
2. As soon as Fonzer becomes aware of any violation by a Customer of this Agreement or other terms and conditions of Fonzer, it may take action to stop such violation. The Customer is liable for any damage suffered by Fonzer and/or third parties for non-compliance with the provisions contained in this Agreement and shall indemnify Fonzer and its suppliers against any damage, claims, etc. which may arise as a result.
3. The Customer is obliged to inform Fonzer immediately in the event of a (provisional) suspension of payments, bankruptcy, liquidation, application for a procedure under the Continuity of Enterprises Act, or loss of legal capacity of the Customer.
4. If Fonzer has not been provided in due time with all the information required for the performance of the Agreement, Fonzer has the right to suspend the performance of the Agreement and/or to charge the Customer the additional costs resulting from the delay according to the customary rates.
5. In order to be able to perform the telecommunications facility, the Customer must have access to the Internet. The Broadband Connection must provide at least 100 kilobits per second per telephone. The Client is responsible for the correct choice and the timely and adequate availability of the Broadband Connection. Fonzer shall never be liable for any damage or costs due to transmission errors, malfunctions or the unavailability of these facilities.
6. The Customer is responsible for the connection of a Broadband Connection over which Fonzer can provide its services. If the Customer experiences a defect in this, an interruption or termination of this, it remains fully responsible for payment of all amounts provided for in the Agreement until such time as this is terminated by Fonzer. A non-functioning Broadband Connection never discharges the Customer from its payment obligation.
7. The Customer acknowledges that it is responsible for the costs arising from use of the Service via its Broadband Connection, even if this is done without its consent. All costs incurred in using the Service are for the account of the Customer.
Realisation of the Agreement
1. Fonzer is only bound by this Agreement after Fonzer has accepted the Customer's Order in writing (by letter or e-mail). The Customer remains bound by his Order until Fonzer has accepted the Customer's Order in writing. The admission by Fonzer of the commencement of this Agreement shall be sufficient evidence that the Agreement has been accepted in full by the Customer and shall be considered as authorisation to invoice the relevant Goods and/or Services.
2. The conclusion of the Agreement will take place under the resolutive condition of acceptance or processing by the Platform Provider. If the Customer is not accepted by the Platform Provider, this Agreement will be regarded as never having existed without Fonzer being liable to pay any (compensation) to the Customer.
3. Any order for a Service is made by Fonzer subject to availability. Fonzer reserves the right not to carry out an order without giving reasons, as long as Fonzer has not confirmed the order to the Customer. In addition, Fonzer always has the right not to accept an application if there is a reasonable and well-founded suspicion that the Customer will not or cannot properly comply with the Agreement. A reasonable suspicion is in any case considered to be circumstances that give reason to doubt the Customer's creditworthiness or bad payment behaviour towards Fonzer or third parties.
4. The execution of the Agreement is suspended until full payment by the Customer of the Advance invoice, which will be provided by Fonzer at the time the Agreement is concluded. As long as the Advance Invoice remains unpaid, Fonzer shall not provide any Service to the Customer and the Customer cannot force Fonzer to do so in any way whatsoever. If the Advance invoice remains unpaid for more than thirty (30) days after a reminder to do so, Fonzer shall be entitled to dissolve the Agreement without being liable for any compensation. The Agreement shall then be regarded as never having existed. In such case, the Customer shall compensate Fonzer for the costs already made in preparation for the delivery of the Services.
5. The Agreement shall be definitively concluded on the day of fulfilment of the aforementioned conditions, activation of the Service and receipt of electronic notification thereof by the Customer (hereinafter the "Availability Date").
6. All quotations made by Fonzer are without obligation and are valid for 8 days after the date, unless otherwise stated. Fonzer is only bound to its quotations if the Customer confirms the acceptance thereof in writing within 8 days.
Duration and termination of the Agreement
1. The Agreement commences as of the Availability Date as stipulated in Article 5.5 for a term of three (3) years that is automatically and tacitly renewed for a period of one (1) year each time, unless terminated by one of the parties by means of a registered letter no later than two months prior to the expiry of the current period. In the event of timely termination, the Agreement shall end after the expiry of the then current period. After termination, all outstanding claims shall become immediately due and payable in their entirety.
2. If the Agreement is not terminated in time within the periods set out in article 6.1, the Customer shall owe a surrender charge. The surrender charge shall consist of the fee, as stipulated in article 9, for the remaining period of the then current period and the expected consumption (based on the weighted average of the consumption of the Customer prior to the cancellation) for the remaining period of the then current period. The surrender charge must be paid immediately after termination.
3. Fonzer reserves the right, without prejudice to its right to claim damages, to declare the Agreement terminated with immediate effect, by operation of law and without prior notice of default, by the mere dispatch of a letter to the Customer sent by registered post, in the following cases:
  - repeated or serious breaches of contractual obligations (such as late payment) by the Customer;
  - in case the Customer has applied for a moratorium, is in a state of bankruptcy or cessation of payment, his credit has been jeopardised or he is evidently insolvent;
  - in the event of dissolution and liquidation of the Customer's company;
  - if all or part of the Customer's goods are seized in execution and/or custody at the request of a creditor or in the event of other execution or custody measures concerning the Customer's goods;
  - in case of evidence or serious suspicions of fraud by the Customer;
  - if the Customer refuses to provide the requested information or if the Customer has provided incorrect and/or false information.
4. Fonzer may terminate the Agreement, without the Customer being able to claim any compensation, if the Platform Provider, or any other supplier necessary for the provision of the Services, terminates its contract with Fonzer, for any reason whatsoever, and cannot be replaced (in time) by another Platform Provider or supplier. In such case the Agreement will be terminated by operation of law on the same day as the agreement between Fonzer and its supplier ends.
5. Either Party may terminate the Agreement if the other Party imputably fails to comply with its essential obligations under the Agreement, in all cases after having received a proper written notice of default which is as detailed as possible and in which a reasonable term is set for curing the failure. If the Agreement is terminated by the Customer in order to conclude an agreement with a supplier of Fonzer, the Customer shall inform Fonzer of this when terminating the Agreement.
6. Costs incurred by Fonzer in the performance of the Agreement before the date of dissolution and the compensation for call charges incurred up to the date of dissolution of the Agreement shall remain due in full force and shall become immediately payable at the time of dissolution.
7. If and insofar as in the opinion of Fonzer or the Platform Provider the proper execution of this Agreement requires, Fonzer, the Platform Provider or a third party designated by them is entitled to carry out certain activities.
Authentication
1. In order to be able to use the Services, Authentication is required. To this end, Fonzer shall provide the Customer with an individual login and password. The Customer shall do everything necessary to keep the login and password safe and shall always treat them as confidential. It shall only disclose these data to authorised personnel and shall do everything necessary to ensure that they are not disclosed or passed on to other persons or third parties in any way whatsoever.
2. The Customer shall fully and unconditionally indemnify Fonzer against any direct or indirect adverse effects, damage, debts, costs, etc. arising from the misuse, loss or any other unlawful use of its login and password. Fonzer shall never be held liable for any damage or costs resulting from misuse of the login and password or any other access or identification code.
Telephone numbers & legislation
1. The allocation of telephone numbers shall only be possible within the provisions of the Act of 10 July 2012 containing various provisions relating to telecommunications (i.e. the Telecom Act) and its implementing decrees. The Customer shall behave in accordance with the provisions of this Act and its implementing decrees and shall indemnify Fonzer against any liability for non-compliance with the obligations thereunder.
2. The Customer guarantees and undertakes that when using these Services, he will comply with all relevant legal provisions and regulations and will not use the Services for illegal or immoral purposes.
3. If the Customer already has a telephone number in use with another provider, he can submit a request to Fonzer to retain the telephone number. The telephone number can be kept if the Agreement with this original provider is terminated and the provider cooperates in keeping the number. The Customer shall follow the instructions of Fonzer for the execution of a request for number retention.
4. If the Customer has several telephone numbers or number blocks, one or more of the number blocks or telephone numbers can be permanently cancelled if no number porting of these numbers is submitted. Customer needs to specify which numbers are eligible for number porting.
5. Fonzer is not liable for the loss of a telephone number as a result of an incorrect request for number portability.
Fees and payments
1. The Customer shall pay the following fees for the provision of the Services:
  - A one-off fee for the start-up of the Services consisting of:
    - A one-off start-up fee for establishing the Service;
    - Hard limit.
  - Monthly fee consisting of :
    - A monthly subscription fee for making the Service available and providing.
2. The fee as stipulated in article 9.1. shall be calculated on the basis of the Tariff and Price List (herein the "Tariff and Price List") attached as Annex 2 to this Agreement. The amounts stated in this Tariff and Price List are exclusive of VAT or any other government-imposed levies.
3. The hard limit referred to in article 9.1 is determined in function of the estimated monthly use and with application of the Fonzer Tariffs and Price List, or by mutual agreement between the Parties. Upon reaching the Hard Limit, no further costs can be incurred and the Services shall consequently be suspended, unless the Hard Limit is adjusted by Fonzer. However, Fonzer can never be forced to temporarily increase the Hard Limit and cannot be held liable for any damages of any kind if it refuses such an increase. Fonzer will not be required to motivate a refusal.
4. The Hard Limit acts as a guarantee and a maximum limit above which Fonzer may automatically suspend the Services, without incurring any liability of any kind, until the Customer has paid its outstanding balance in full.
5. The Services will only be started after payment of the one-off fee as provided for in article 9.1. For this purpose, Fonzer shall provide the Customer with an advance invoice upon signature.
6. The subscription and call charges will be invoiced to the Customer by Fonzer on a monthly basis. For this purpose, Fonzer shall send the Customer an invoice no later than the fifteenth day of each month, together with an overview of the call duration used in the previous month. The first invoice after the start-up of the Services will be sent by Fonzer in the month following the month in which the Services were started up. The first invoice consists of:
  - an advance for the call charges i.e. the hard limit
  - the one-time activation cost of Fonzer's business panel and porting cost
  - the call costs incurred from the start of the Services until the end of the month in which they were started
  - the one-off subscription fee
  - the subscription costs of the previous month
  - purchased equipment, installation costs, etc...
7. Payment shall be made within the term of payment stated on the invoice, to be calculated from the date of the invoice.
  - Invoices will be sent to the Customer in electronic form. They will be sent to the Customer at the e-mail address he has provided. The electronic invoice shall therefore be the sole and original copy of the invoice, and shall have the legal meaning and scope of the invoice.
  - Invoices are payable within 14 calendar days of receipt of the invoice, unless otherwise stated on the invoice. An electronically sent invoice or notice of default shall be deemed to have been received by the Customer on the day it was sent. Invoices or notices of default sent by post shall be deemed to have been received by the Customer within 2 calendar days after the postmark.
  - The Customer shall owe Fonzer the amounts determined by Fonzer. These are determined on the basis of the Tariff and Price List applicable at the relevant time and the period of use determined by Fonzer. Fonzer's records are binding for the determination of the amounts owed, unless these records are proven to be incorrect. The lack of written protest of an invoice within 8 working days from its sending, implies the irrevocable acceptance of the invoice and the Services mentioned therein.
8. After receiving the objection, Fonzer will investigate the correctness of the invoice amount. The part of the invoice amount against which no objection is made remains due and payable. Payment of that part may therefore not be postponed.
9. Fonzer is at all times entitled to (electronically) adjust the Tariff and Price List. The notification of this price adjustment shall be done via e-mail. The amendments shall apply to all existing contracts and current deliveries of Services to the Customer. The changes will take effect on the date specified by Fonzer, subject to an announcement period of at least 1 month. The increase in prices and rates by suppliers will be passed on 1-on-1 in the applicable rates. The Customer will be informed of these changes in advance.
10. If Fonzer has concluded an Agreement on behalf of the Customer with a third party and this third party increases its rates, Fonzer is entitled to implement this rate increase immediately.
11. The expiry of the payment term places the Customer in default by operation of law and without prior warning. As from the expiry of the payment term, a conventional interest on arrears shall be due equal to the interest rate specified in Article 5 of the Law on Late Payments (Law 02/08/2002, Belgian Official Gazette 07/08/2002), increased by 3%. Until full payment of the invoice, Fonzer may also suspend the Services without any compensation or liability of any kind.
12. If, in Fonzer's opinion, the Client's financial position or payment record so warrants, Fonzer shall be entitled to demand that the Client immediately furnish (additional) security in a form to be determined by Fonzer. If the Customer fails to provide the required security, Fonzer shall be entitled, without prejudice to its other rights, to suspend further performance of the Agreement immediately and all that the Customer owes Fonzer for whatever reason shall be immediately payable.
Software and Hardware
1. The installation of new software or hardware may possibly affect the service level guarantees given. The Customer shall therefore inform Fonzer of such installation of new software prior to the installation. If such notification has not taken place and Fonzer or its suppliers discover software which endangers the functioning of the network or the Services of Fonzer or third-party suppliers, the Customer may be asked to remove the software. Under no circumstances shall Fonzer be held liable or be obliged to pay compensation for problems that may occur in the Services due to software installed by the Customer.
2. Web applications, such as applications on Mozilla or Internet Explorer, will always remain the responsibility of the Customer.
Security, maintenance and delivery
1. Fonzer will make every effort to keep the Service available outside of maintenance hours with an up-time of 99.9%.
2. Fonzer will make every effort to secure the data stored on its computer systems or on those of its suppliers (or have them secured) in such a way that, in addition to Fonzer, only the system manager of the Platform Provider has access to this data. The Customer is entitled to request copies of the data stored in the computer systems. Fonzer may charge a fee for the administrative costs incurred. The data will only be stored on the computer systems of the Platform Provider for a limited time.
3. Fonzer will make every effort to ensure proper security of the Service, within the possibilities of the current state of the art. Fonzer may take possible technical measures to protect the software. The Customer is not allowed to circumvent or remove these.
4. Fonzer is not liable for any damage on the part of the Customer or third parties resulting from insufficient security. If the Customer notices or suspects that third parties have gained access to Fonzer services in an improper manner, he must report this to Fonzer immediately and at the latest within one day. Except in case of intent or gross negligence on the part of Fonzer, Fonzer shall never be liable for any damage resulting from such improper use of its services.
5. The Customer is aware that Fonzer cannot offer complete protection against the security risks of connecting to the Internet and that these risks are higher in the case of a permanent connection to the Internet. If the Customer wishes to reduce or exclude these risks, the Customer must set up a firewall at his own expense.
6. Fonzer, its suppliers or the Platform Provider reserve the right to make changes to (the access to) the Service, the hostname and/or the access code if this is desirable for the correct functioning of the Service. If such changes directly affect the way in which the Customer obtains access to the Service(s), Fonzer will inform the Customer of the changes in a timely manner.
7. The Customer accepts that Fonzer, the Platform Provider and/or one of its subcontractors may from time to time perform maintenance works or inspections on the Service. By entering into this Agreement, the Customer expressly accepts that such maintenance work or inspections may be carried out. Fonzer shall inform the Customer thereof in advance, except in an emergency. In the event of an emergency, Fonzer will inform the Customer as soon as possible of the inspections or maintenance work to be carried out.
8. If Fonzer:
  - notified the Customer in advance of the maintenance work or inspections or;
  - in the event of an emergency, has informed the Customer without delay of the inspections or maintenance work being carried out, Fonzer cannot be held liable by the Customer for the downtime associated with this.
9. Fonzer will investigate malfunctions as soon as possible and, in so far as it can eliminate the malfunction itself, it will make every effort to resolve the malfunction as soon as possible, or to encourage the Platform Provider to do so.
10. Fonzer shall make every effort to ensure that the Service runs as smoothly as possible. However, Fonzer does not guarantee the speed, availability or quality of the Service. The Customer is aware that the Service is provided via a platform belonging to a third party, namely the Platform Provider.
11. The quality of the Service depends on, among other things, the Broadband Connection used by the Customer and the peripheral equipment (including the number and type of telephones and accessories). Furthermore, (simultaneous) use by the Customer of the Broadband Connection for applications other than the Service (e.g. downloads) may affect the quality and availability of the Service. As a result of the technical structure of the Internet, no bandwidth can be guaranteed between the Customer's computer system and any other computer system that forms part of the Internet.
12. Fonzer is not liable for any damage incurred by the Customer as a result of the Service not being (fully) available due to circumstances, such as power failure or overloading of the Broadband Connection, as a result of which the Service is temporarily not (fully) available. Fonzer wishes to emphasise that, under such circumstances, the emergency numbers 100, 101 and 112 may also be (temporarily) unavailable. If the Customer moves to another address, the Agreement shall be continued unchanged, unless this is not reasonably possible. The Customer shall inform Fonzer of the move without delay.
13. If the Customer appears to owe above-average amounts in a limited period, Fonzer is entitled to block certain destinations until the Customer has paid the amounts owed or has provided security in a manner indicated by Fonzer.
Deactivation of the Service
1. If, as a result of the use of the Service(s) by the Customer, traffic on the fixed network of Fonzer, the Platform Provider or of a third-party supplier of Fonzer is hindered, the Customer is obliged within 24 hours after a prior written notification from Fonzer to bring its use of the Service in accordance with the instructions given by Fonzer in the notification. If, in Fonzer's opinion, this is necessary, Fonzer may immediately (temporarily) take the Service out of use, in whole or in part, without any compensation being due.
2. Fonzer is entitled to fully or partially decommission the Services provided to the Customer and to suspend the provision of the Service if the Customer fails to fulfil essential obligations under this Agreement, including the stipulations regarding permitted use and the payment obligations, after a written reminder. If circumstances of extreme urgency make immediate suspension necessary, no prior written notice is required.
3. The Customer shall remain obliged to pay all amounts due during the period of suspension.
4. The suspension provided for in this article shall end immediately as soon as the Customer fulfils his obligations.
Liability of Fonzer
1. Fonzer shall endeavour to perform the services to the best of its ability and insight and in accordance with the requirements of good craftsmanship, on the basis of the then known state of the art and written agreements and procedures.
2. The liability that Fonzer may incur in connection with this Agreement arises from a best-efforts obligation that must be duly demonstrated by the Customer. Given the nature and technical nature of each computer program, it is admitted and acknowledged by the Customer that, according to the current state of technology and knowledge, it is not possible to guarantee that the Services will work uninterruptedly. The Services are provided 'as is' and Fonzer does not guarantee in any way that the Services will meet the actual purpose and/or intended use of the Customer.
3. Fonzer shall only be bound to compensate direct damage caused by it, as defined in paragraph 2 below, due to attributable shortcomings of Fonzer and/or pursuant to the dissolution of this Agreement, however, up to a maximum amount per claim that corresponds to the compensation owed by the Customer for the month preceding the moment when the event(s) giving rise to the claim occurred. A series of connected events shall be regarded as a single claim. Under no circumstances shall compensation for direct loss exceed one thousand five hundred euros (EUR 1,500). Direct damage shall be understood to mean only and exclusively:
  - The reasonable costs which the Customer would have to incur to have Fonzer's performance comply with this Agreement. However, this damage is not compensated if the Customer has dissolved the Agreement.
  - Reasonable costs incurred in determining the cause and extent of the damage, insofar as the determination relates to direct damage within the meaning of this Agreement.
  - Reasonable costs incurred to prevent or limit the damage, insofar as the Customer demonstrates that these costs have resulted in limiting direct damage within the meaning of this Agreement.
4. These maximum amounts shall apply regardless of whether the claim is brought on a contractual or non-contractual basis. Related, similar or connected claims shall always be regarded as a single claim.
5. Fonzer's liability on account of attributable failure to perform the Agreement shall in all cases only arise if the Customer gives Fonzer immediate and proper notice of default in writing, allowing a reasonable period to remedy the failure, and Fonzer continues to fail attributably in the performance of its obligations even after this period. The notice of default must contain a description of the shortcoming that is as complete and detailed as possible, so that Fonzer is able to respond adequately. A condition for the existence of any right to compensation is always that the Customer reports the damage to Fonzer in writing as soon as possible after it occurs and at the latest within 5 days. The Customer must describe the Complaint in detail, state the possible cause, what steps have already been taken to resolve the Complaint and what actions the Customer expects Fonzer to take. Furthermore, the Customer must state his name, company name, address, place of residence, e-mail address and telephone number. Any claim for compensation against Fonzer expires after a period of 3 months following the occurrence of the harmful event.
6. Is explicitly excluded from liability:
  - compensation by Fonzer for any indirect or consequential damage, including financial or commercial losses, loss of profit, increase in overheads, disruption of planning, loss of expected profit, capital, clientele, loss of money or securities, reduced goodwill, damage due to business interruption, damage as a result of claims by the Customer's customer, damage caused by the use of or inability to use the Service(s) by the Customer or third parties, damage relating to the use of goods, materials or software of third parties prescribed by the Customer for Fonzer, damage relating to the use of suppliers prescribed by the Customer for Fonzer is excluded. Insofar as Fonzer is dependent on the cooperation, services and deliveries of third parties in the performance of its obligations, it cannot be held liable for any damage resulting from their fault, including gross or intentional fault.
  - damage caused by the fault of the Customer, and/or its Users;
  - the compensation of all direct and indirect damages caused by the incorrect use of the Services or by the use of the Services in violation of the AUP;
  - damage to the Customer, the Users and/or other third parties arising from unauthorised access to the Customer's and/or Users' account and/or Materials, whether or not the Customer has authorised such use;
  - damage to the Customer, the Users and/or to third parties arising from third-party software and/or hardware.
  - damage arising from the failure to install and/or the incorrect use of the tool made available by Fonzer which provides access to the Services
  - any liability arising from a pre-announced maintenance and/or emergency maintenance
  - any liability concerning the connectivity between the Customer and Service Provider;
  - the compensation of damages caused in whole or in part by software or hardware delivered or made by third parties, or by any other element in the Customer's business, or brought into the Customer's business after the conclusion of the agreement
7. Unless otherwise agreed by the Parties, the Customer is responsible for the use of the Services and the manner in which the Services are deployed. The Customer is also liable for the instruction to and the use by the Users.
8. Nothing in this Agreement shall limit the liability of a Party for fraud or fraudulent intent committed by such Party.
9. The Customer shall indemnify Fonzer against all claims by third parties due to the use or inability to use the Service(s), equipment, software or materials or due to product liability as a result of a defect in a service, product or system which was supplied by the Customer to a third party and which partly consisted of Service(s), equipment, software or other materials supplied by Fonzer or a supplier, equipment, software or other materials supplied by Fonzer or a supplier, except if and insofar as the Contracting Party proves that the damage was caused by those Service(s), equipment, software or other materials and would also have arisen if the Customer had supplied the Service(s), equipment, software or other materials to those third parties without any addition or modification or processing. The exclusions and limitations of liability as stated in this article 13 are also stipulated for and on behalf of the employees of Fonzer and anyone else who is called in by Fonzer in connection with the provision of the Services, as well as for and on behalf of those from whom Fonzer procures delivered items and/or parts.
10. Fonzer is to a certain extent dependent on services or networks of third parties. Fonzer is not liable for any damage, of whatever nature or for whatever reason, caused by services or networks of third parties, including failures in the networks or infrastructure of third parties.
Force majeure
1. Neither party is obliged to fulfil any obligation if prevented from doing so as a result of force majeure. Force majeure is understood to mean, among other things, a failure by Fonzer's suppliers, government measures, fire, electricity failure, failure of internet, computer network or telecommunication facilities, the unavailability of third-party servers, war, terrorist attacks, strikes, general transport problems, etc.
2. If the situation of force majeure lasts longer than three (3) months, the parties have the right to dissolve the Agreement by giving written notice, without there being any obligation to pay compensation in this case. If Fonzer has already performed services when the force majeure occurred, it has the right to invoice separately the part already performed or the part that can be performed, and the Customer is obliged to pay this invoice as if it concerned a separate Agreement. Amounts already invoiced before the termination of the Agreement due to force majeure shall remain fully due and payable immediately.
3. The Customer shall indemnify Fonzer against all claims for costs arising from suspension of services for legitimate reasons and liabilities arising from force majeure.
Use Portal Fonzer and AUP
1. Fonzer takes great care in offering its Portal. Fonzer shall endeavour to act as may be expected from a socially committed Internet and Telecom supplier.
2. Fonzer does not tolerate any abuse of the Portal. Should any abuse of the Portal be discovered by a Customer, this shall result in immediate disqualification from the Portal. Fonzer shall report the abuse and charge consequential damages to the Customer. Fonzer is not liable for the consequences of Customer's denial of access to the Portal due to abuse.
3. The Customer shall not make improper use of the Service, the material or the equipment supplied by Fonzer. Improper use is in any case, but not exclusively, understood to mean: infringing on and/or making changes to the Service as a result of which the Service or other services of Fonzer or third parties could be disrupted and/or impeded.
4. The Customer will only use the Service(s) in accordance with the Acceptable User Policy (AUP) contained herein. By using the Service(s), the Customer will not infringe on the rights of third parties, behave improperly towards third parties or contrary to good morals or public order, and will not cause damage to third parties. In particular, the Customer shall:
  - respect the intellectual property rights of third parties;
  - not disseminate data in violation of legal provisions;
  - not access computer systems for which he is not authorised;
  - not alter, delete, render unusable or add to third-party data without the consent of the relevant third party;
  - not distribute computer viruses or distribute other computer programmes or data with the intention of causing damage to third parties' computer programmes or data; and
  - do not use the Service in such a way as to disrupt telecommunications traffic;
  - set up any unlawful communication.
5. Without prejudice to its other rights, Fonzer reserves the right to suspend its obligations towards the Customer, among other things by denying the Customer access to the Service(s) with immediate effect, if the Customer acts contrary to the provisions of this article 15. Fonzer shall never be obliged to pay any compensation for such suspension. The Customer shall indemnify Fonzer against claims by third parties relating to its acting in violation of the provisions of this article.
6. If the Customer intends to move, he shall inform Fonzer as soon as possible of the new address to which the Service must be converted. Fonzer will make every effort to have the Service converted on time to the (new) address provided by the Customer. The Customer will be charged a one-off amount as compensation for the costs arising from the conversion of the Service. If the Service is not available at the Customer's new address, the Customer remains liable for the fees payable under the Agreement until the Agreement is terminated in accordance with the provisions of this Agreement. The Customer shall, upon request, provide Fonzer with all cooperation necessary to provide the Service to the next occupant at the Customer's old address.
7. The Customer is prohibited from making the Services available to third parties outside the Customer's organisation, unless the relevant computer systems of those third parties are physically located on the Customer's business premises.
8. All rights to the Portal, including the Content, are vested in Fonzer. Without prior consent, a Customer shall not be permitted to copy, modify and/or distribute the Portal (or any parts thereof), unless this has been agreed with Fonzer in writing.
Risk and insurance
1. The risk of loss of or damage to the equipment, software, materials, parts, documentation and other products that are the subject of the Agreement shall pass to the Customer at the time when they are placed at the actual disposal of the Customer. From that moment on, the Customer is responsible for damage that the equipment, software and the like may cause to third parties. After that date, Fonzer shall replace lost or damaged software at the cost of the data carriers and shipment.
2. The Customer must ensure that, as from the transfer of risk referred to in article 16.1, his third-party liability insurance covers the financial consequences of his liability towards third parties, Fonzer and its supplier. The Customer waives any right of recourse and indemnifies Fonzer against recourse of its insurers against Fonzer.
3. If the Customer has goods or rights in his possession which are the property of Fonzer or to which Fonzer or its suppliers are entitled, the Customer shall inform Fonzer immediately if they are attached or threatened to be attached.
4. If products are transported to Fonzer or its suppliers for maintenance or guarantee service and are temporarily present at Fonzer or its suppliers for this purpose, the Customer shall ensure that these products are adequately insured against damage and loss for this period and during transport to and from Fonzer or its suppliers.
General
1. All offers and other statements by Fonzer are without obligation, unless Fonzer expressly indicates otherwise in writing.
2. The conditions contained in this Agreement apply to all offers, quotations and agreements concerning services or products, of whatever nature, offered or delivered by Fonzer. This Agreement contains the complete representation of the rights and obligations of the Parties, and replaces all previous agreements and proposals, whether verbal or written.
3. Upon termination of the Agreement, these additional or different provisions shall also lapse. In the event of any conflict between the provisions of the Order Form, this Agreement or the Appendices, the following order of precedence shall apply:
  - the order form
  - this Agreement
  - the Annexes.
4. If and to the extent that Fonzer makes third-party software and/or hardware available to the Customer, the conditions of the third parties (hereinafter the "Third Party Conditions") apply in full and form an integral part of this Agreement. The Customer accepts these Third Party Terms and Conditions and acknowledges having read them. The Customer cannot derive any more rights with regard to the hardware and software delivered than those contained in the Third Party Terms and Conditions. The Third-Party Terms shall prevail over all other conditions. If and insofar as the Third Party Terms and Conditions referred to are deemed not to apply or are declared inapplicable to the relationship between the Customer and Fonzer for whatever reason, the provisions of this Agreement shall apply in full.
5. Applicability of any purchase or other conditions of the Customer is expressly excluded, even if the general conditions of the Customer would provide otherwise.
6. The Customer must provide Fonzer with appropriate (e-mail) address details for the receipt of this Agreement and notices relating thereto. The Customer is responsible for saving and printing this Agreement, if required, by means of facilities available on the website, in the browser or otherwise. The Customer is also responsible for making and keeping the stored copy accessible to himself.
7. The provisions of this Agreement may be amended by Fonzer at any time by e-mail communication or in writing. The amendments shall apply to all existing Contracts, offers and current deliveries of Services to the Customer. The amendments shall take effect on the date to be specified by Fonzer, subject to an announcement period of at least 1 month.
8. The Customer who does not accept substantial changes to the contractual terms to his disadvantage may terminate the Contract without penalty at the latest on the last day of the month following the entry into force of the change.
9. If during the execution of the Agreement it appears that for a proper execution it is necessary to amend or supplement the Agreement, parties will timely and in mutual consultation amend the Customer's Agreement (in writing).
10. If parties agree that the Agreement is amended or supplemented, this may influence the time of completion of the execution. Fonzer shall inform the Customer of this as soon as possible.
11. If the amendment or supplement to the Agreement will have financial and/or qualitative consequences, Fonzer shall inform the Customer thereof in advance, if possible.
12. Each Party shall be obliged to keep confidential with respect to third parties all data of a confidential nature, in whatever form, obtained from and about the other Party.
13. If necessary, Fonzer may transfer rights and obligations from the Agreement to third parties and shall inform the Customer thereof, if required by law. If the transfer of obligations to a third party is unreasonably onerous for the Customer, the Customer has the right to terminate the Agreement within thirty (30) days after receiving said notification.
14. The possible nullity of one of the provisions of this Agreement shall not in any way affect the validity of the other clauses despite the nullity of the disputed clause. The Parties shall use their best endeavours to replace the null and void clause by a valid clause with the same or substantially the same economic impact as the null and void clause.
Applicable law and disputes
1. The Parties shall try to settle disputes amicably as far as possible.
2. Fonzer undertakes to resolve any problems of which it is informed as soon as possible. If the customer/subscriber is not satisfied with the answer or solution offered, he or she may turn to the internal mediation service of Fonzer. Only written complaints sent to [email protected] or via the contact address of Fonzer, for the attention of the Ombudsman's Service, Veldkant 10, 2550 Kontich, will be taken into consideration.
3. The Customer may nevertheless turn to the Office of the Ombudsman for Telecommunications to inform himself of his interests:
  - The Ombudsman for Telecommunications
    Koning Albert II-laan 8 box 3
    1000 Brussels
    www.ombudsmantelecom.be
4. The present Agreement is subject to Belgian law. In case of disputes concerning the execution and/or interpretation of the present Agreement, the Courts of Antwerp, section Antwerp shall have exclusive jurisdiction. No claim may be made by the Customer in respect of the services provided more than three (3) months after the event giving rise to the claim or if the Customer has not informed Fonzer thereof within 5 days after the event.

ANNEX 1: SPECIFICATION REGARDING THE PROCESSING OF PERSONAL DATA

Personal data
Within the framework of article 3.1 of the Agreement, Fonzer will process the following (special) personal data on behalf of the Customer:

Telephone number
E-mail address
IP address
Passport photos
Name and address details
Voicemail messages
Faxes
Call Detail Records
Recorded telephone calls (Call Recording)
Signalling and audio of telephone calls

Of the categories involved:

Customers
Employees/clients' staff
Called and calling parties

The Customer warrants that the personal data and categories of data subjects described in this Annex 1 are complete and correct, and indemnifies Fonzer against any defects and claims resulting from an incorrect representation by the Customer.