Article 1 – General Considerations
The General Terms and Conditions apply to the relations between the public limited company under Luxembourg law SK Consulting S.A., established and having its registered office at 49, rue de Cessange, L-1320 Luxembourg, registered with the Trade and Companies Register of Luxembourg under number B210264, (hereinafter the “Service Provider”) and its customers or subcontractors (hereinafter, the “Customer”), and, in general, all of their business relations.
They define the framework and the deadlines for the performance of the services and tasks of SK Consulting S.A., including the delegation of tasks to be defined between the contracting parties, as well as the respective obligations. All of the services provided by SK Consulting S.A. are subject to these General Terms and Conditions of sale. Specific supplementary or deviating terms and conditions may be agreed upon in a specific agreement.
SK Consulting S.A. is entitled to amend these General Terms and Conditions as long as it has not expressly agreed to the services to be performed.
Unless an exemption is expressly granted and signed by the representative(s) of SK Consulting S.A., these General Terms and Conditions shall apply to the exclusion of any other condition that may be communicated by the Customer, even in the event where these conditions stipulate that the latter becomes part of the contract only under its own conditions.
These General Terms and Conditions form an integral part of the contract entered into between SK Consulting S.A. and its Customers or subcontractors.
Article 2- Implementing rules
SK Consulting S.A. and the Customer shall determine together the conditions under which the services are provided under the service contract.
The service contract is only binding on SK Consulting S.A. following its express acceptance by the Customer through the signature of the latter. Any service contract sent to SK Consulting S.A. formally binds the Customer. The Customer’s employees, trade commissioners, agents or intermediaries are deemed indisputably to have the required mandate to bind the latter in respect of the Service Provider.
SK Consulting S.A. agrees to perform and successfully complete in accordance with good professional practice, the services ordered by the Customer and agreed in the service contract. The Customers agrees not to use the products and software subject to the Service Provider’s service provision until the installation and/or configuration of the latter has been fully completed and/or it has been commonly agreed otherwise.
The Service Provider’s employees, trade commissioners, agents, subcontractors, suppliers, and intermediaries have no power that is binding. Offers, purchase orders and service contracts, as well as the delegation of tasks shall only bind the Service Provider after written ratification by an administrator or director duly authorised to provide such ratification, except where a delivery or service has already been commenced by the Service Provider.
The Service Provider reserves the right to revoke an order, a delegation of tasks or a service contract that has not received such ratification or to ratify such an order or delegation of tasks
Any supplementary service provision, including new licence requests, or the analysis of software that has not been installed by the Service Provider, following the Customer’s request or required as a result of the actions of the Customer, such as but not limited to, a change in settings or the installation of a new application, and that are not attributable to it shall result in additional charges.
In the event of the cancellation of the services/licenses scheduled/requested by mutual agreement with the Parties, prior to the planned service provision or usage date of the licenses, and not cancelled within 2 calendar days SK Consulting S.A. expressly reserves the right to claim cancellation fees, which may be as high as the full amount of the cancelled service provision/licenses, by way of damages.
The Service Provider shall only be liable upon delivery of the products and upon the provision of the services explicitly specified in the order confirmation or the signed service contract. All other products and services shall be billed to the Customer at the rates in force, available on request.
The services solely create obligations of means on the part of the Service Provider, to the express exclusion of any performance obligation.
Article 3 – Determination of prices
3.1. Determination and content of prices
The services are invoiced monthly according to the hourly rate as set forth in the service contract signed between the Customer and Service Provider. The price may include all the ancillary expenses related to the service (travel time and/or travel costs, relocation expenses, meal expenses, overtime, accommodation expenses, etc.). This information will be expressly specified in the service contract.
For each of its services/tasks, SK Consulting S.A. reserves the right to issue bi-monthly invoices. SK Consulting S.A. furthermore reserves the right to issue interim invoices if deemed necessary to ensure the smooth progress of the task.
All the Service Provider’s prices are exclusive of VAT with charges and taxes in addition.
3.2. Revision of prices
3.2.1 Provision of services
In principle, the prices remain valid for the duration specified in the service contract but can be reviewed at each renewal with 3 month written notice before the end of the renewal date.
Should the price of the services provided by a third party be increased after the contract has been signed, the Service Provider is entitled to pass this increase on in the contract price through a notification sent to the Customer by email or registered mail. This repercussion shall be presumed as accepted by the Customer five working days after the mailing of the notification unless an objection by the latter is sent within that same period by registered mail. In the absence of the Customer’s consent, the Service Provider shall discuss with Customer on how to adapt the prices. If the discussion does not result into a mutually agreed solution within 10 working days, the Service Provider is entitled to terminate the contract.
3.2.2. Provision of licences
In principle, the prices are guaranteed for the duration specified by the Service Provider or its partners such as but not limited to, Microsoft. Should the price of the licences provided by a third party be increased after the subscription has been started, the Service Provider is entitled to pass this increase on in the contract price through a notification sent to the Customer by email or registered mail. This repercussion shall be presumed as accepted by the Customer five working days after the mailing of the notification unless an objection by the latter is sent within that same period by registered mail. In the absence of the Customer’s consent, the Service Provider shall be entitled to unilaterally revoke the contract.
3.3. Payment terms
All invoices are payable in cash, net and without discount at the Service Provider’s registered office, within 30 days following the date of receipt of the latter, which is presumed to be effective three working days after the date of the invoice. Any advance payments made by the Customer are to be deducted from the price of the services. They constitute the start of the fulfilment of the contract and not a deposit that the Customer may give up in order to free itself from its obligations.
Any partially or totally unpaid invoice and, not contested by the customer, within 10 calendar days starting at the date of its receipt, which is presumed to be effective three working days after the date of the invoice, shall be subject to a formal notice by registered email to the customer.
In the absence of total or partial payment of an invoice, 10 working days after the sending date of aforementioned formal notice, the Service Provider, reserves the right, without prior notice, to suspend its services and to reinstate them, unless the Customer indicates otherwise, upon settlement of the payment. It also reserves the right to automatically terminate the service contract and to request the payment of any amount due under the contract. It also reserves the right to issue reactivation fees.
All amounts that are open after their due date (“past due amounts”) by the Customer according to the receipt date of the invoice, which is presumed to be effective three working days after the date of the invoice, shall be increased automatically and without formal notice, by the ECB’s (European Central Bank) latest refinancing rate increased by an additional 5% per year.
Any claim related to an invoice must be addressed to the Service Provider by registered mail with acknowledgment of receipt not later than 10 working days after its receipt, which is presumed to be effective three working days after the date of the invoice. After this period, no further claim shall be taken into account. After that deadline, the invoice will be deemed definitively accepted.
A claim may in no circumstances justify suspension of payment.
Article 4 – Duration and deadline for the achievement of the services
The duration of the service or task delegation contracts is set forth in the service contract. The service contract shall automatically terminate in accordance with the deadlines stipulated in the service contract unless other arrangements have been agreed between the parties.
Unless expressly agreed otherwise in writing, the deadlines are for illustrative purposes only and are not binding in the service contracts. A delay in the performance of the task or service may not under any circumstances give rise to the cancellation of the service contract or to any compensation, except in the case of the wilful misconduct of the Service Provider. Where circumstances make it impossible to perform the service or task, whether such situations arise on the part of the Service Provider or on the part of one of its subcontractors, the Service Provider expressly reserves the right to offer equivalent services to those agreed in the service contract to be performed at a later date or to terminate its commitments to the Customer, without any compensation.
Each of the parties is entitled to terminate the service contract immediately by giving written notice to the other party when its co-contracting party has violated any provision of these General Terms and Conditions of sale.
Article 5 – Warranties and limitation of liability
SK Consulting S.A. warrants that its services are provided with the skill, diligence and care reasonably required, and disclaims any other warranties, whether express or implied, that is not explicitly stipulated.
SK Consulting S.A. does not give any additional warranty in respect of the supplies that do not form part of its service provision, such as for example services and supplies provided by third parties. Similarly, the Service Provider makes no warranty of compatibility of the system put in place with other software purchased by the Customer itself. The checks on the compatibility of the systems put in place with other software purchased by the Customer, shall belong to the Customer and to the Customer alone.
The warranty relating to the products installed is limited to that granted by the manufacturer, of which the Customer is fully aware or about which the Customer is deemed to have been fully informed before signing the contract. In particular, it does not cover the consequences of the following situations: insufficiency or deficiency of the hardware, software, telecom and electrical environment; consumables and normal wear and tear of parts; addition or connection of hardware or software that is not included in the contract; alteration to the delivered products performed without our prior written agreement; all cases of force majeure or government action, without this list being exhaustive.
The Service Provider does not in any circumstances guarantee the suitability of any hardware or software for solving a particular or characteristic problem of the Customer’s activity. Furthermore, any defect of which the Service Provider is unaware that could affect the software is not covered by the warranty unless in the case of wilful misconduct from the Service Provider. The granting of the warranty assumes that the delivered products are wisely used, in accordance with the conditions of the offer or in the normal conditions of use mentioned in the catalogues, notices and manuals put at the Customer’s disposal. The Customer undertakes to maintain the delivered software at the highest level of upgrade, the acquisition cost of the new versions being at its expense
SK Consulting S.A. may not be held liable for any damages of any nature whatsoever suffered by the Customer or third parties and resulting directly or indirectly from one of its services or the use of one of the installed software applications, in particular the loss of data or any financial loss resulting from its use or the inability of using it, even if the Service Provider has advised of the possibility of such damages. It is consequently the Customer’s responsibility to make regular back-up copies – and in any event prior to any technical intervention – of his operating systems, applications and data.
In any event, if the liability of SK Consulting S.A. were to be established on the grounds of failing to fulfil its obligations, whether this is on a contractual basis, an extra-contractual basis or for any other reason, its liability is limited to the direct damages suffered by the Customer.
SK Consulting S.A. shall not under any circumstances be required to compensate for any damages, of any nature whatsoever, resulting from:
– any malfunction in respect of a service provision from a third party,
– a use that is not consistent with the purpose of the software, service or supplies,
– any case of force majeure such as lightening or a power supply disruption.
– any fact that can be demonstrated as being outside of the scope of responsibility of the Service Provider.
Article 6 – Property
Should this contract include software licences, then the delivered software shall remain the exclusive property of the respective manufacturer. The Service Provider only provides the Customer with non-exclusive licences authorising use in accordance with the licence purchased from the manufacturer by the Customer.
The Customer is required to pay scrupulous respect to the confidentiality of the software delivered. It may not, in any manner whatsoever, dispose of its licences, pledge them, alienate them, communicate them or lend them, either for payment or free of charge. It is prohibited to counterfeit the software delivered, to allow it to be counterfeited or to encourage it to be counterfeited, in any way whatsoever.
Article 7 – Non-solicitation clause
Throughout the term of any service contract and for a period of 12 months following the contract’s termination, the Customer is prohibited from attempting to hire, directly or indirectly, one of the Service Provider’s employees or subcontractors, under penalty of paying the Service Provider an irreducible indemnity of 20,000 EUR per employee or subcontractor concerned, without prejudice to the Service Provider’s right to claim a higher rate of compensation where applicable.
Article 8 – Confidentiality Clause
Each of the parties acknowledges that within the framework of the performance of the service contract, they have access to confidential information.
Under no circumstances may any information and/or data concerning the Customer be transmitted, communicated or sold, in whole or in part, to any third parties whomsoever. SK Consulting S.A. undertakes to keep completely confidential all of the information and/or data processed within the framework of the services ordered from it, unless the law provides otherwise.
Article 9 – Applied Law and Jurisdiction
The invalidity of any clause or part of a clause of these terms and conditions shall not affect the other clauses or parts of the clauses, and the clause or part of the clause concerned shall be as far as possible replaced by a valid provision having equivalent effect.
This document is exclusively governed by Luxembourg law. Any claim relating to its interpretation, performance and termination falls within the exclusive competence of the courts of Luxembourg.
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