Latest version: Thursday 15 January 2015
(add-on in article 5 with point 5.10 compared to version from 6 May 2013)
These General Terms and Conditions govern the relationship between The Ring Ring Company NV, a Belgian registered company having its seat at Culliganlaan 2/F in B-1831 Diegem, Belgium under company number 0445.262.068 (hereinafter RingRing) and its Clients. Except express written agreement stating the contrary, these General Terms and Conditions apply to all services and goods, quotations, orders, contracts and invoices (hereinafter jointly: the “Services”) rendered, delivered or established by RingRing, even in case of absence of any signed order form by the Client.
The Services rendered by RingRing might be subject to a specific agreement between RingRing and the Client. In case of contradiction between provisions from the present General Terms and Conditions and provisions from a specific agreement the latter conditions will prevail.
All rights and obligations established between the Client and RingRing (together the “Parties”) regarding the Services ordered by the Client shall collectively be called “the Agreement” to which the present General Terms and Conditions shall apply.
Both the present General Terms and Conditions as the conditions in a possible specific agreement between the Parties are considered to be known and accepted, either by the signature of the Client on a document referring to any of these conditions or by the absence of any opposition by the Client in writing within five (5) business days after receipt of the first document that communicates any of these conditions. In case of absence of a reaction within the before mentioned period, all information transmitted by the Client is considered to carry the latter’s acceptance regarding the correctness and relevance of that information for the Services at stake. In case of continuous commercial relations the present Conditions can not be disputed anymore.
1. Conclusion of Agreement
1.1 Orders must be delivered to RingRing in writing (by letter, email or fax). Any disputes shall be settled on the basis of written documents. In the absence of the latter RingRing can not be held responsible in the event of any possible misinterpretation of an order or request made by the Client. Every order is irrevocably binding for the Client.
1.2. RingRing shall at all-time preserve the right, without having to provide for any reasons, to refuse the delivery of Services, including for applications that could potentially harm RingRing’s quality of Services or its reputation. RingRing will also refuse any possible application that might or does violate any provisions of the Code of Conduct (see Section 6 hereunder) or that could be considered to be an “Unacceptable Use” of the Services (see Section 10 hereunder).
1.3. The offers and tenders provided by RingRing are established on the basis of the information provided by the Client. Any change regarding this information might imply a revision of the price and/or the delivery modalities by RingRing.
1.4. A written order from the Client or a confirmation of the order by RingRing is provided for each additional order.
1.5. The cancellation of the order by the Client must be made by written notice to RingRing.
1.6. The cancellation of the order, regardless of the reason, entitles RingRing to the payment of the full entire fee envisaged, subject to the right of RingRing to claim full compensation for any damage that might have occurred or occur because of the termination.
1.7. The provisions in this Section apply to all cancellations, whether before, during or after the completion of the Service(s) covered by the cancelled order.
2.1 Except where otherwise clearly indicated, any Agreement will be considered to be concluded for a period of one (1) year, automatically renewed for successive one year terms thereafter. Unless the Client provides RingRing with a 3 month notice in writing, the Agreement will automatically renew at the end of the Term.
2.2. The negotiated deadlines for delivering the Services may be extended following a possible delay of the Client in providing the necessary information needed for the performance of the Services, as well as to the payment of its invoices provided by RingRing.
2.3. A delay in delivering the Services can in no way cause the cancellation of an order and/or the termination of the present Agreement, nor the payment of damages of any kind by RingRing.
2.4. If Services constituted from diversified performances are foreseen, each performance needs to be considered as a separate agreement, so that events that relate to a given performance, do not affect subsequent performances.
3. Execution of the Agreement, complaints and acceptance
3.1. RingRing undertakes to deliver the Services to the best of its ability in light of its available technical capacities and in accordance with the requirements and expectations of good practice to perform.
3.2. RingRing shall preserve the right to modify the manner in which it executes the Agreement following any possible changes relating to its technical framework, unforeseen workload, legal changes etc. The Client shall not have the right to claim any form of compensation due to such modifications made after reasonable consideration by RingRing.
3.3. If required for the proper execution of the Agreement RingRing reserves the right to have certain work done by third parties.
3.4. In order to be valid, the Client’s complaints must be communicated by registered letter within eight (8) days after the delivery of the Services, and if applicable, the delivery of the goods.
3.5. An absence of a complaint regarding the delivered Services in accordance with Section 3.4. of the present General Terms and Conditions implies the Client’s unconditional and irrevocable acceptance, without reservation, of the Services delivered as well as of the respective invoice.
4. Price and Payment
4.1. All prices in tenders, quotations and/or orders are exclusive of VAT, unless expressly indicated otherwise by RingRing. The Client will be the sole responsible to abide by the relevant VAT and other applicable tax provisions relating to the Services ordered.
4.2. Invoices are payable within thirty (30) days of receipt and without discount unless otherwise stated on the invoice. All invoices not paid on due date, shall automatically and without prior notice, result in contractual interest at the rate of 3% per month from the due date, with a minimum fee of 100 Euros.
4.3. In addition to Section 4.2. of the present General Terms and Conditions the Client will have to pay a fixed and irreducible compensation of 15% payable on the outstanding invoice amount, without prejudice to the delay interest referred to in the previous Section 4.2. of the present General Terms and Conditions, as well as any applicable charges and court fees.
4.4. The non-payment of any invoice when due, authorizes RingRing to demand immediate payment of the integral, outstanding balance from its debtor and provides RingRing the right to cancel all current orders unilaterally without any formal requirements. Such cancellation does not prejudice RingRing’s right to obtain compensation.
4.5. Payments made in advance by the Client will be calculated within the price of the order.
4.6. The (fixed and variable) prices and fees used by the Operators might be subject to change, without any prior notification. In such case RingRing shall preserve the rights to impose new prices to the Client, even without warning.
4.7. Netting between undisputed amounts due between the Parties in the context of this Agreement shall be possible. Unless otherwise agreed, Parties shall be allowed to proceed with netting or any other form of compensation between undisputed amounts that Parties owe to each other under this agreement and any other amounts.
5.1. RingRing shall under no circumstance be liable for any damages hereunder, direct, compensatory, consequential, indirect, special, punitive or otherwise, regardless of the form of action or basis of any claim and the Client’s sole and exclusive remedy hereunder shall be the termination of the Agreement.
5.2. RingRing can not be held liable for the temporary failure or malfunctioning of the system, be it technical or otherwise, whether due to force majeure or not.
5.3. RingRing’s liability shall in any event be limited to refunding the price of the non-conformingly executed part of the delivery. Liability for any other form of damage resulting from the relationships with the Client is hereby expressly excluded.
5.4. RingRing can not be held liable for damages resulting from the deployment of third parties for the proper performance of the contract as defined in Section 3.3. of the present General Terms and Conditions.
5.5. RingRing can not be held liable for damages of any nature whatsoever, which are the result of improper, incorrect or unclear information and/or data provided by the Client.
5.6. RingRing shall not be liable for any content whatsoever – including documents, projects, etc. – or property owned by or in the possession of the Client and handed over by the Client. The Client expressly indemnifies RingRing of any liability, particularly in the case of total or partial damage or loss due to any reason. Hence the Client shall remain the exclusive owner of the content he or she provides for.
5.7. Notwithstanding the payment modalities provided for in Section 4 of the present General Terms and Conditions, any reduction in the credit situation of the Client, or indications in this regard, shall justify RingRing’s request for guarantees or for an advanced settlement, and this before the execution of the orders received.
5.8. The Client shall indemnify and hold RingRing harmless from and against any and all damages, liabilities, losses, costs and expenses (including reasonable legal fees) sustained, incurred or suffered by RingRing, arising out of or resulting from the Client, its officers, directors, members, suppliers, agents or representatives.
5.9. The Client shall indemnify RingRing for any legal claim from third parties regarding the transferred works, documents, information or elements and their content. The distribution of the content of the information published by the Client will remain the latter’s sole responsibility. For clarity: the transmittal of any content (for example: a communication or a text) by the Client to RingRing shall imply the Client’s acceptance of that content).
5.10. The RingRing services, among which the Crisis Communication Center, are under no circumstances intended to support, carry or replace emergency calls or any emergency services nor any other notification measures to be addressed to the competent and/or local authorities. Neither RingRing nor its representatives will be liable under any legal or equitable theory for any claim, damage, or loss (and customer will hold RingRing harmless against any and all such claims) arising from or relating to the inability to use the RingRing services to contact emergency services nor for any delay or malfunctioning of the Services in accordance with article 5.2 above.
6. Short Codes and IVR numbers
6.1. The use of a Short Code or an IVR number mentioned on the order is always temporary. This number will be reserved on the Client’s name for an agreed time period upon receipt of a signed order form mentioning such reservation. The Client will at no time become the owner of the Short Code or the IVR number itself, nor will the Client have any decision power at all regarding any Short Code or IVR number.
6.2. When using RingRing’s Services – including the use of Short Codes and/or marketing numbers – the Client, deemed to be well informed, undertakes to strictly abide by the obligations and rules set forth by the following documents (hereinafter jointly the “Code of Conduct”):
(i) the Royal Decree of 9 February 2011 laying down the Telecommunications Code of Ethics;
(ii) the GOF Guidelines for SMS/MMS Services;
(iii) the provisions in the Belgian Telecom Act governing the “don’t call me-list”;
(iv) the tax related provisions regarding telecommunication services among others in the Circular nr. IR/IV-4/91.368 (AINV – 2/2009 AOIF 51/2009) from the 10th of November 2009 etc.;
(v) any rules or regulations set forth by the Belgian mobile Operators with respect to the use of their services;
(vi) any other industry standards or rules established by any European or Belgium competent authority in any manner linked to the Services ordered by the Client.
A copy of these documents setting forth the Code of Conduct to be followed by the Client is available for the Client at all times and can be sent upon written request. Any fines or penalties issued by the Belgian Institute for Postal services and Telecommunications (BIPT), by any of the Operators or any other competent authority for non-compliance by the Client with any of the rules or obligations of the Code Conduct will immediately and unconditionally be charged on to the Client. RingRing reserves the right to deduct such fines or penalties from the income of the Client.
6.3. In case of an abuse of so called SMS and VOICE services by the Client, RingRing can immediately, and without prior warning, terminate the Agreement without having to pay any form of compensation, according to Section 8.2. (vi) of the present General Terms and Conditions. In such case, RingRing shall be entitled to keep all income in order to pay for possible damage that occurred or fines to be settled. The amount of fines or penalties to be settled exceeding the income shall be payable by the Client. A lump sum of 50 € will furthermore be charged per complaint that RingRing has to deal with for the Client. This amount may be deducted by RingRing from the income of the Client.
6.4. Whenever the end of the action and/or a Short Code or IVR number is not mentioned in advance, only one month starting from the end of the month will be acceptable as a norm for ending the respective number. With the exception for foreign numbers for which three months from the end of the month is the norm.
7. Undertakings and Warranties
7.1. The Client undertakes to make available all materials and all documentation useful or necessary for the performance of the Services, and provide RingRing with all the resources necessary to enable RingRing to properly carry out its obligations under the Agreement.
7.2. The Client represents and warrants that it:
(i) has the right to enter into the Agreement which, once duly executed by both parties, shall represent a binding legal agreement, enforceable by RingRing in accordance with its terms;
(ii) shall faithfully and in a timely, professional manner, honor, adhere to and be in compliance with all of the requirements and obligations set forth in the Agreement;
(iii) shall ensure that its activities, conduct, actions, materials and/or relationships shall not infringe upon or violate the rights of any party, nor any laws, regulations, ordinances or orders of any judicial or governmental authority or the Code of Conduct described in Section 6 of the present General Terms and Conditions. To the extent such laws, regulations ordinances or orders conflict with the terms of the present General Terms and Conditions, the Client agrees to promptly notify RingRing and RingRing shall have the sole right to determine how to resolve such conflict, always subject to applicable laws, rules or regulations.
7.3. The Client represents and warrants that it holds all rights, approvals and licenses required for use or reproduction of the application (and its respective content) that the Client makes available to RingRing.
8.1. The Agreement shall be legally binding upon both parties from the signing of the order by both Parties unless terminated earlier in accordance with its terms and shall continue according to the provisions in Section 2 of the present General Terms and Conditions regarding the Term of the Agreement.
8.2. RingRing shall have the right to terminate the Agreement, by giving written notice yet without having to provide for reasons or indemnify the Client in any way, in the following cases:
(i) gross negligence, fraud or violence by the Client;
(ii) a material or repeated breach of the Agreement by the Client which renders any further cooperation impossible, or, if it concerns a breach that can be remedied, if such breach is not resolved and/or no end has been made to the breach within 7 days after written notification with acknowledgment of receipt provided by RingRing describing the breach of agreement and the request to make an end to such breach;
(iii) any content made available through RingRing’s Services by the Client in violation of the provisions regarding the Acceptable Use of Services in Section 10 of the present General Terms and Conditions hereunder and if the content made available through RingRing’s Services is not taken down immediately. For clarity: the transmittal of any content (for example: a communication or a text) by the Client to RingRing shall imply the Client’s acceptance of that content;
(iv) the Client suspending or threatening to suspend the payment of its debts, the Client being unable to pay its debts as they fall due, the Client admitting its inability to pay its debts, or the Client deemed unable to pay its debts following a decision of a competent national authority. Any other case practically identical or similar to the consequence of a potential bankruptcy of the Client.
(v) a change of legal control of the Client as an entity;
(vi) the existence of reasonable suspicion, or indications leading thereto, with regard to the insincere, deceptive or bad faith intentions of the Client, potential future irregularities, violation of any legal provision or any of the obligations in the Code of Conduct or the present General Terms and Conditions.
8.3. Upon termination of the Agreement according to Section 8.2 of the present General Terms and Conditions above, the Client shall immediately pay all remaining amounts due under the Agreement to RingRing. This includes all payments due for Services delivered until the termination as well as payments for the Services that were supposed to be delivered until the end of the Term.
8.4. In the case of non-fulfilment by the Client of its obligations or in default of payment of invoices according to the conditions specified in Section 4 of the present General Terms and Conditions, RingRing may suspend the delivery of its Services without the suspension leading to a termination of the Agreement.
8.5. In case the non-fulfilment by the Client of its obligations – in total or in part – continues for a period of 30 days after a written notice is delivered by RingRing, the latter can consider the Agreement to be automatically terminated borne by the Client.
8.6. In case the Client would terminate the Agreement unilaterally, outside the framework of the conditions provided in the present General Terms and Conditions, the Client commits itself to pay RingRing a lump sum payment of 1.500 Euro by way of compensation within 7 days of the termination of the Agreement by the Client. The Client shall furthermore pay all outstanding amounts due as if the Agreement would have been terminated in respect of Section 2 of the present General Terms and Conditions.
9. Data protection
10. Acceptable Use of Services
10.1. In addition to the provisions regarding the termination of the Agreement expressed in Section 8 of the present General Terms and Conditions, RingRing preserves the right to immediately terminate the Agreement, by giving written notice yet without having to provide for reasons or indemnify the Client in any way, if the Client makes use of RingRing’s website or its Services in such way that it can reasonably be considered to be an “Unacceptable Use” of the Services in light of RingRing’s reputation, the Code of Conduct or general good practices. RingRing may determine the foregoing in its sole discretion and without having to provide for a reason.
10.2. RingRing preserves the right to immediately, and without giving any reasons or having to indemnify the Client in any way, terminate the Agreement if the Client makes an ‘Unacceptable Use’ of the Services delivered by RingRing in any of the following manners (this list is non-exhaustive):
(i) any use or attempted use impacting the availability, reliability or stability of RingRing’s website and or Services, for example, attacking RingRing’s (online) infrastructure by means of a denial-of-service attack, trying to bypass or circumvent any of RingRing’s security mechanisms, testing the vulnerability of RingRing’s infrastructure by reverse-engineering the Services etc. including any attempt of the before mentioned actions;
(ii) any use or attempted use creating any form of risk, damage or danger regarding the security or the well functioning of RingRing’s Services, including for third parties;
(iii) any use or attempted use that may subject RingRing or any third party to liabilities, damages or danger;
(iv) any use or attempted use that is or might be considered a violation of the Code of Conduct;
(v) any use or attempted use in any other way than expressly provided by the Agreement, including for reasons of (attempted) fraud;
(vi) any use or attempted use implying any transmittal of material infringement of intellectual property rights of RingRing or third parties;
(vii) any use or attempted use and viruses containing viruses, worms, bombs, Trojans or any other malicious, harmful or deleterious programs;
(viii) any use or attempted use aimed at unsolicited advertising, spamming, marketing, SMS junking etc. in any way unwanted by recipient. Nor any use or attempted use aimed at collecting personal data and information (for example telephone numbers, email-addresses etc.) from others without the necessary prior permission;
(ix) any use or attempted use aimed at the promotion and engagement in illegal activities including but not limited to: creating a false identity, forging email addresses, misleading others with regard to an identity, etc.;
(x) any use or attempted use, whereby through the making available by the Client, of content that is or can be considered to be negative, libellous or defamatory or otherwise malicious or harmful to RingRing or any person or entity, or discriminatory based on age, sex, gender, religion, nationality, sexual orientation etc.;
(xi) any use or attempted use that violates or might violate any European or Belgian legal provision, including civil – criminal and public law provisions.
10.3. Upon getting aware of any form of Unacceptable Use in the light of this Section, RingRing will preserve the right to immediately suspend or terminate the Agreement, by written notice, without having to provide for any reason.
10.4. RingRing’s right to suspend or terminate the Agreement, as described in Section 10.3 of the present General Terms and Conditions above, does not affect its right to claim compensation for damages that might have occurred, including but not limited to damage to its reputation or quality of Services. Such a suspension or termination of the Agreement by RingRing shall furthermore not prejudice RingRing’s right to undertake any kind of legal action against the Client, until 5 years after the suspension and/or termination of the Agreement following an Unacceptable Use by the Client as described here above.
11. Intellectual property
11.1. RingRing will remain exclusive owner of the intellectual property rights, including but not limited to the Benelux trademarks number 1259006 and 1259000, relating to its Services applications, platforms, and all other elements belonging to RingRing.
11.2. All Services developed by RingRing remain the latter’s intellectual property. Nothing in the Agreement, nor in any specific agreement with a Client, shall be understood as a waiver of RingRing’s intellectual property rights, including copyright, to any of its Services.
11.3. The Client shall be the sole responsible to ensure the respect of all the intellectual property rights of third parties, including copyright, when making available, transmitting or providing content of any kind through RingRing’s Services. This will include any content placed, communicated or made available by the End Users of the Services. RingRing will under no circumstance be liable for any damage that might occur, including the violation of a third party’s intellectual property rights, following the content used through the Services for which Client shall remain exclusively responsible.
Notices under the Agreement shall not be valid unless in writing and sent to a Party at its known address.
If any provision of the present General Terms and Conditions (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the present General Terms and Conditions, and the validity and enforceability of the other provisions of the present General Terms and Conditions shall not be affected. In the foregoing case the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties’ original commercial intention.
14.1. Both Parties agree to regard and preserve as confidential all non-publicly available information related to the business and activities of both Parties, their members, suppliers and other entities with whom the Parties do business or with whom they are associated, that may be obtained by the Parties from any source or may be developed as a result of the Agreement.
14.2. The Parties agree to hold such information in trust and confidence and shall not disclose such information to any person, firm or enterprise, or use (directly or indirectly) any such information for its own benefit (other than for purposes of the Agreement) or the benefit of any other Party, unless authorized by the other Party in writing. Information is not confidential to the extent it is: (i) already known by a Party free of restriction when obtained; (ii) rightfully obtained from an independent third party free of restriction; or (iii) available publicly.
15.1. The Client may not assign the Agreement nor any of its rights or delegate any of its duties under it without the written consent of RingRing.
15.2. Any amendments to the Agreement, as well as any additions or deletions, must be agreed in writing by both Parties.
15.3. No failure or delay in exercising any right, option or remedy, enforcing any obligation or requiring performance, shall impair or be construed as a waiver or on-going waiver by RingRing of that or any other right, option or power of RingRing, unless in writing signed by RingRing.
15.4 No breach by the Client of any provision of the Agreement shall be waived or discharged except with the express written consent of RingRing.
15.5. The liability of a Party can not be retained under these General Terms and Conditions, in case of abnormal and unforeseeable circumstances beyond the control of the Party by whom it is pleaded, the consequences of which, despite all precautions could not be prevented.
15.6. Each form of delivery of the Services, by post or electronic, shall be at risk of the designated Party.
15.7. RingRing is allowed to refer to the rendered Services, goods and performance with the appointment of the Client for marketing or promotional purposes on RingRing’s website or otherwise.
15.8. RingRing preserves the right to partially or entirely modify the present General Terms and Conditions governing the Agreement at any time. RingRing therefore advises the Client to perform regular controls of the RingRing website were possible modifications will be advertised.
16. Applicable law and competent court
The present General Terms and Conditions shall be governed by and construed in accordance with the laws of Belgium. Any dispute or controversy relating to these present General Terms and Conditions can only be brought in the exclusive jurisdiction of the Brussels’ courts and each Party consents to the exclusive, personal jurisdiction of such courts.