General terms and conditions for the provision of SMS4less services

In these Terms and Conditions, the words described below shall have the meaning set forth in the following definitions:

1.1 The Customer: the natural or legal person who orders the Contractor to perform the Services to which these General Terms and Conditions apply.

1.2 The Contractor: the company under Belgian law Advanced Technology Explained nv/sa, located at Chaussée de Bruxelles 283/12 in 9230 Wetteren, subsidiary of CompuGroup Medical BVBA, with company number 0474.702.954 (also referred to in these General Terms and Conditions as "ATX" or "we/us").

1.3 The Services: the sending of SMS messages, as instructed by the Customer, to his patients or client base to remind them of an appointment made by them with the Customer. The Services are contained under the heading "SMS4less".

1.4 Confidential Information: any information, in any form, which is designated as confidential by either party or which can reasonably be assumed to be confidential in nature, e.g. personal data, certain specific business data.

1.5 Personal data: any information relating to an identified or identifiable natural person within the meaning of personal data protection legislation, including the General Data Protection Regulation (also referred to as "GDPR").

1.6 Identifiable natural person: a person who can be directly or indirectly identified, in particular by reference to an identifier such as a name, an address or a telephone number.

1.7 Credit Bundle: The bundle sold by the Contractor, which entitles the Customer to a certain number of SMS messages to be sent. The price per SMS sent depends on the bundle chosen.

2.1 These General Terms and Conditions relate to all SMS4less Services.

2.2 For more information on the content of these Services, please consult the following link https://www.sms4less.be/.

2.3 The Contractor reserves the right to remove certain Services from its range of services or to add other services to it.

It also reserves the right to change the content of certain Services in accordance with the provisions of the current General Terms and Conditions.

3.1 These General Terms and Conditions automatically apply to all Agreements concluded between the Customer and the Contractor regarding the Services, without the need for a formal signature.

3.2 An Agreement is understood to be the order of Services by the Customer to the Contractor, regardless of whether a written agreement was signed or not.

3.3 These General Terms and Conditions always take precedence over any general terms and conditions of the Customer, which cannot apply to the Agreement between the Customer and the Contractor, unless expressly waived in writing.

4.1 The Contractor's Services are always without obligation, unless expressly stated otherwise in the Agreement.

4.2 To enter into an Agreement with the Contractor, the Customer must first successfully register on the website www.sms4less.be.

Accordingly, the Agreement will only be executed by the Contractor after the creation of an account and Credit Bundles can only be purchased after its creation.

4.3 The Agreement comes into effect on the day the Services were effectively ordered by the Customer. Consequently, unless expressly stated otherwise, the date of the placement of the order will be the effective date of the Agreement, and therefore of these General Terms and Conditions.

4.4 The Agreement shall be deemed to be concluded for an indefinite period.

4.5 However, if an account is not used for five (5) years, the Customer's account will be automatically deleted, and the Agreement will be deemed to have been terminated. All unused credits will hereby be permanently lost, without the Contractor being obliged to repay them.

The Contractor is not obliged to inform the Customer of this.

If the Customer wishes to place a new order - i.e. enter into a new Agreement with the Contractor - after his account has been deleted, he will have to re-register on the aforementioned website.

5.1 The applicable rates are those mentioned on the website www.sms4less.be.

5.2 The price per SMS depends on the Credit Bundle chosen by the Customer (for illustration: 1 to 500 messages, 501 to 1,000 messages, etc.).

5.3 One (1) credit means one (1) SMS sent by the Contractor.

SMS messages worth one (1) credit can contain a maximum of 160 characters.

If the message of an SMS contains more than 160 characters, the message is split over several SMSes, with a maximum capacity of ten (10) SMSes for one sent message.

In the event of message splitting for the aforementioned reason, the (split) SMSes will contain a maximum of 153 characters instead of 160 characters, for technical reasons. In this case, each split SMS has the value of one (1) credit.

5.4 All prices quoted by the Contractor are expressed in EURO, exclusive of VAT and other government levies, unless explicitly stated otherwise.

5.5 The Contractor reserves the right to revise the rates once a year. This price revision will take place during the first quarter, where applicable.

If the Contractor has implemented a price modification, the applicable rates may thus differ from those applicable at the time the Agreement was concluded.

Price revisions are announced on the website www.sms4less.be.

6.1 The Customer may order Services in two (2) ways, namely:

• Via the website www.sms4less.be, or
• Directly via the linked application of the Contractor or of a company associated with the Contractor used by the Customer, under certain conditions.

6.2 Credits purchased shall remain valid for at least two (2) years.

6.3 The Contractor has the option to cancel credits if the Customer has not used up the purchased credits after a period of two (2) years.

All unused credits will hereby be permanently lost, without the Contractor being obliged to repay them.

The Contractor is not obliged to inform the Customer of this.  

7.1 Payment for the Services is made either directly via the website or by bank transfer within thirty (30) days of an invoice being issued.

7.2 No payment reminders will be sent in the event of non-payment or non-payment in full of the Services. The Services will simply not be provided.

7.3 If the Customer purchases the largest Credit Bundle, exceptionally and subject to the prior express agreement of the Contractor, the credits may be activated before the expiry of the payment period of thirty (30) days from the invoice issue date.

However, if the invoice was not paid in full within the predetermined period, the provision of the Services will be suspended until and unless it is paid in full.

8.1 The Services must be paid for in full before they can be used.

Subject to the exception of clause 7.3, the Services will only be provided if they have already been paid for.

9.1 The Customer must notify the Contractor of any objection to an invoice within a period of seven (7) days from the invoice date.

After this deadline, the Customer waives any right to dispute the invoice.

9.2 The Customer must notify the Contractor of any objection regarding the Service offered by the Contractor within the period of seven (7) days of the alleged shortcoming.

9.3 The communications referred to in Articles 9.1 and 9.2 should contain as detailed a description as possible of the objection or alleged shortcoming.

They should be made in accordance with the manner contained in Article 21.2.

9.4 An objection by the Customer does not suspend its payment obligations. In other words, notwithstanding the objection, the Customer must pay the invoice within the agreed period.

9.5 If the complaint and/or objection is well-founded, the Contractor shall, within the limits of what is stipulated in Article 10, proceed to the remedy it deems appropriate and/or try to remedy any shortcomings in the future.

10.1 The Contractor assumes the obligation of means to provide the Services according to the rules of good craftsmanship. All obligations of the Contractor are only best effort commitments.

Nevertheless, the flawless operation of SMS services can never be guaranteed completely and/or at all times.

10.2 This obligation of effort does not constitute a guarantee that the intended result will be achieved.

10.3 The Contractor undertakes to make all necessary and reasonable efforts to solve bugs, malfunctions and all kinds of technical problems within a reasonable period of time.

10.4 The Contractor also uses the services of third parties for the provision of the Services. If bugs, malfunctions and any kind of technical problems originate with these third parties, the Contractor shall make all reasonable efforts to enjoin these third parties to return the Services to optimal operation as soon as possible.

11.1 The Customer must at least have a properly functioning software and Internet connection to be able to use the Services.

11.2 The Services consist of sending an appointment reminder. In any case, the Customer must ensure that he has clearly communicated the appointment made with his patient or customer to his patient or customer and that the latter has noted the appointment made.

12.1 The Contractor cannot be held liable for bugs, breakdowns, temporary unavailability and all kinds of technical problems that hinder the correct provision of services. Nor can it be liable for any fault (even serious misconduct) of its or its appointee(s), except in the event of fraud or deliberate serious misconduct, and the cases described in this article.

Given the general obligation incumbent on the Client to clearly communicate appointments with its patients or clients to the latter, the Contractor cannot be liable if a patient or client misses or arrives late at an appointment.

The Contractor shall also not be liable in case of force majeure as defined in Article 13.

12.2 In any case, the Contractor can never be held liable in the event of non-fulfilment or poor fulfilment of the Agreement through the (partial)  fault of the Customer, including for errors due to insufficient, late or incorrect input of data by the Customer, incorrect or unauthorised use of the SMS system, defective software or Internet connection or all kinds of technical problems at the Customer's premises, non-payment or incomplete payment for the Services, etc.

12.3 The Contractor shall also never be liable for non-performance or poor performance of the Agreement due to the fault of a third party to the Agreement, including third parties on whom the Contractor relies for the performance of the Services.

Consequently, the Contractor is not liable for bugs, breakdowns and all kinds of technical problems, nor for any incident, of whatever nature, of which the origin lies with the third party, and which affects the availability and/or proper performance of the Contractor’s Services.

12.4 In the event the Contractor’s liability is retained, its liability shall be limited to the damages directly suffered by the Customer, which are the direct result of a breach of the obligations under the Agreement or  tort attributable to the Contractor, excluding all indirect damage, including, without this enumeration being exhaustive, consequential damage, loss of profit, lost savings and decrease in turnover, image damage and damage relating to personal data.

In such case, the liability of the Contractor shall never exceed the total price (excluding VAT) paid by the Customer for the Services in one (1) year, with a maximum of1,000 EUR in total.

12.5 In any case, the Contractor's liability will only be withheld if:

(i) the Customer gives the Contractor written notice of default in the manner set out in clause 9; and

(ii) the Customer, grants the Contractor a reasonable period, with a minimum of 10 working days, to remedy the defect in its Service and the Contractor fails to remedy the defect even after that period.

12.6 The Customer is liable for any damage suffered by him or others that is (partly) the result of non-compliance with any of the obligations under the Agreement, the legal obligations incumbent on him directly or indirectly related to the Agreement and/or the general duty of care incumbent on him.

13.1 The Contractor shall not be liable in case of force majeure.

13.2 Force majeure is to be understood, without this listing being exhaustive: war, mobilisation, riots, floods, natural disasters, closed shipping, other impediments to transport, stagnation in respective restriction or cessation of supply by public utilities, lack of coal, gas, petroleum products or other means of energy generation, fire, water damage, machinery breakdown and other accidents, strikes, public unrest, lockouts, trade union actions, export restrictions, administrative measures and other governmental measures, non-delivery of necessary materials and semi-finished products by third parties, pandemic, intent or gross negligence of auxiliary persons and other similar circumstances beyond the control of the Contractor.

14.1 Unless expressly agreed otherwise in writing, the Contractor, or the third party it calls upon, is and remains at all times the party entitled to the intellectual property, of whatever nature, that may arise on the works produced by him and this even if the work in question is stated as a separate item on the invoice.

14.2 The Client shall at all times respect and, where necessary, protect the Contractor’s intellectual property rights in relation to the Services, and/or those of third parties on whose services the Contractor’s Services are based, and shall inform the Contractor without delay of any infringement committed by third parties, including by its employees, of which it becomes aware.

The Customer also guarantees the Contractor that it, including its appointees, will not infringe any rights that the Contractor and/or third parties may assert under national, supranational or international regulations in the field of intellectual property rights, including drawings, models, trademarks, computer programmes, codes, trade secrets and know-how, databases, works, copies, data carriers, etc. of any nature whatsoever (hereinafter: "the works"), within the framework of or as a result of the use of the Services that are the subject of the Agreement.

14.3 During the performance of the Agreement, the Customer only acquires the non-exclusive right to use the works produced by the Agreement, in particular the computer programmes, to the extent that the use can be characterised as a normal consequence of the performance of the Agreement.

15.1 The Contractor acts in the capacity of Processor of Personal Data. The Customer acts in the capacity of Controller of the Personal Data.

15.2 Processing shall take place in accordance with the Data Processing Agreement (also referred to as "DPA") entered into between the Parties.

15.3 The Parties acknowledge and mutually agree that the performance of the Services envisaged by the Agreement involves the collection and processing of the Customer's Personal Data by the Contractor.

Both parties undertake to process Personal Data in accordance with the applicable legislation on personal data protection, including the GDPR. In any case, the Contractor will only use the personal data communicated by the Customer for the performance of Services that are the subject of the Agreement.     

15.4 In   the event of the deletion of the Customer's account in accordance with Article 4.5, all Personal Data associated with the Customer's account will also be permanently deleted.

16.1 The parties acknowledge the confidential nature of the information they receive from each other under the Agreement. They undertake to keep all Confidential Information secret and to use it only for the purpose for which it was provided.

16.2 The parties shall take all reasonable measures to protect Confidential Information and shall not disclose such information to third parties, except to the extent necessary for the performance of the Agreement or if they are required to do so by law.

16.3 The obligation to keep Confidential Information confidential remains in force even after dissolution of the Agreement.

16.4 If a party needs to provide information to a third party, for example a government agency, the relevant party will notify the other party without delay, unless a legal requirement prohibits the relevant party from notifying the other party.

16.5 In the event of a breach of the duty of confidentiality, the breaching party shall be liable for any damage suffered by the other party as a result.

17.1 The Contractor shall be free to modify, improve or replace the content and functionalities of its Services (mentioned in article 1.3) with new Services, or permanently discontinue its offer without the Customer being able to assert any claims against the Contractor.

17.2 If Services are changed or replaced, Services will be offered that correspond as far as possible to the Service already contracted by the Customer, without such change or modification reducing the value or quality of the Services originally ordered.

17.3 The Contractor shall notify the Customer at least one (1) month before the planned change or replacement of the Services via a notice on the website www.sms4less.be.

Should this be objected to within seven (7) days by the Customer, the Agreement may be terminated. Termination by the Customer shall only apply for the future and shall not involve the repayment of unused credits. This possibility to object applies in case of reduced services, but not for improvement of the Services or identical services offered in a different but equally efficient way.

 18.1 The Contractor is entitled to transfer all or part of its contractual rights and obligations to a third party, without the Customer’s prior consent and without the Customer being able to claim any compensation in connection with this transfer. However, the transfer may not result in a reduction of the Services to the Customer.

In the event of transfer of the Agreement, the Customer may terminate the transferred Agreement without compensation within a period of 15 days from the notification of the transfer, using the method referred to in Article 20.1.1. Termination by the Customer shall only apply for the future and shall not imply the repayment of unused credits.

18.2 The Customer may transfer all or part of its contractual rights and obligations to a third party only with the prior approval of the Contractor and after the Customer and the transferee have completed and signed the transfer form prepared by the Contractor. In this case, the transferee will take over the Customer's account and will be deemed to accept current General Terms and Conditions and the applicable rates.

19.1 By the Contractor

19.1.1 The Contractor may, without being held liable for any damages, without prior notice of default or judicial decision, suspend the performance of its obligations or terminate the Agreement in the following cases:

• The Customer dies;
• The Customer applies for a deferment of payment, judicial reorganisation or bankruptcy or is declared bankrupt, or if any part of its assets are attached;
• The Customer is placed under administration or receivership;
• The Customer fails to fulfil any of its obligations under the law, a regulation, the Agreement or these General Terms and Conditions for at least 15 days;
• The Customer ceases to operate, ceases to pursue its statutory purpose, decides to liquidate, or otherwise loses its legal personality or transfers or merges its business.

19.1.2  If, due to force majeure, fulfilment of the Agreement is not possible for the Contractor, it has the right to terminate all or part of the Agreement or temporarily suspend the performance of the Agreement.

The Contractor undertakes to inform the Customer about this to the extent possible.

19.2 The Contractor shall never be liable for compensation in the aforementioned cases on account of suspension or termination of the Agreement.

19.3 By the Customer

19.3.1 The Customer may terminate the Agreement at any time by giving written notice in accordance with the manner contained in Article 20.1.1.

20.1 The Contractor

20.1.1 All communications to the Contractor should be made exclusively by email to the following address: info@sms4less.be or via the contact form on the SMS4less website.

20.2 The Customer

20.2.1 The address and Personal Data of the Customer's account are deemed valid. All communications to the Customer will be made on the basis of these details. Communications by the Contractor may be validly made by email and, where provided for in these General Terms and Conditions, by publication on the website www.sms4less.be.

21.1 If one or more provisions in these General Terms and Conditions are invalid or void, the other provisions will remain in force. The Contractor shall then replace the invalid or void provisions with new provisions that correspond to the invalid or void provisions as much as possible.

21.2 The Contractor reserves the right to amend these Terms and Conditions at any time. The amendment of the Terms and Conditions will be announced the website www.sms4less.be.

The invoices issued by the Contractor will also always include or at least refer to the most recent version of the General Terms and Conditions.

The drafting date indicated on the General Terms and Conditions determines its effective date.

21.3 The fact that the Contractor does not require or implement the strict application of one or more of the provisions of these General Terms and Conditions at any given time may not be regarded as a waiver of the rights available to the Contractor under these General Terms and Conditions. The Contractor may also later always demand strict compliance with this provision or the other provisions of these General Terms and Conditions.

22.1 Only Belgian law shall apply to these General Terms and Conditions and the Contracts executed hereunder.

23.1 In case of disputes concerning these General Terms and Conditions, the Agreement between the Customer and the Contractor and/or its execution, which cannot be settled amicably, only the courts of the district of Ghent (Belgium) shall have jurisdiction.