GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT

Transcription

1 GENERAL TERMS AND CONDITIONS OF DELIVERY AND PAYMENT DigitasLBi Belgium nv/sa (Chamber of Commerce BE ), having its registered office and business address at Vorstlaan 191 Boulevard du Souverain, 1160 Brussels, Belgium. hereinafter referred to as Supplier These General Terms and Conditions consist of 9 pages. GENERAL PROVISIONS 1 Scope of application 1.1 These General Terms and Conditions shall apply between the Supplier and the Customer to all (oral or written) offers, bids, contracts and statements of work in the broadest sense of the word (hereinafter: a contract ). 1.2 The Customer expressly represents that it accepts these General Terms and Conditions to the exclusion of any general terms and conditions it uses, unless the Supplier and the Customer have expressly agreed otherwise in writing. In the event that the parties have agreed in writing that other terms and conditions shall apply, the latter terms and conditions shall apply only for the specific order for which they have been agreed. 2 The formation of contracts 2.1 All of our (oral or written) offers shall be free of obligation, unless a period has been agreed in writing for the acceptance or validity of any offer. The Supplier shall nevertheless be entitled to revoke an offer within five working days of its having reached the Customer. 2.2 A contract shall be deemed to have been concluded and the work shall be scheduled in upon acceptance of the offer by the Customer in writing or, in the absence of any offer, in the event that the Customer gives the Supplier an order and the latter accepts said order. 2.3 In the event that the Customer cancels the order completely or in part after a contract has been formed, the Supplier shall be entitled to charge the Customer all the costs the former has incurred and/or will incur in connection with the order. After payment of the cancellation costs by the Customer, the Supplier shall surrender to the Customer all the work-in-progress in furtherance of the order that was developed during the period prior to the cancellation, all of this subject to the other provisions of these Terms and Conditions. 3 Prices 3.1 The prices and rates shall be inclusive the work to be carried out by the Supplier as described in the offer, bid or contract. All prices and rates shall be exclusive of sales tax (VAT) and other governmentally-imposed charges and do not include a compensation for packaging, import, transport, travel and accommodation expenses, office costs, (technical) documentation, audio and/or visual material of third parties, purchase of hardware, software of third parties, training of the Customer, installation, implementation and the like, unless as agreed otherwise in the offer, bid or contract. 3.2 In the event the Customer has a request to change and/or add to the specifications for the work to be produced and delivered by the Supplier, it shall notify the Supplier accordingly. The Supplier shall then issue the Customer with a price quotation for any additional work to be performed as a result of such change(s) and/or addition(s). The Supplier shall not carry out any additional work without first receiving a written order thereto from the Customer. The Supplier shall invoice the Customer for this additional work. In the event of a request for change/additional work, the most recent specifications will always prevail over older specifications. 3.3 The Supplier shall at any time be entitled to adjust her prices or rates by means of a written notification to the Customer. These new prices and rates shall be applicable to all the following offers, bids and contracts between the Supplier and the Customer. DigitasLBi Belgium nv/sa 1

2 4 Payment 4.1 All invoices shall be paid by the Customer in accordance with the payment conditions stated on the invoice. In the absence of specific conditions, the Customer must make payment no later than thirty days after the invoice date hereinafter: the payment period. 4.2 If payment is not made in the payment period, the Customer shall be in default by operation of law and the Supplier shall impose a late-payment interest fee of 1.5% per month (one point five percent), calculated over the period the Customer is in default, all of this without any further notice of default or court intervention being required. 4.3 If, after notice of default, the Customer remains in default of its payment obligation, the claim may be put out for collection, in which case the Customer shall also be required to make full payment for all the (extra-) judicial and collection costs incurred by the Supplier, without prejudice to the Supplier's other rights. 4.4 If payment is not made in any relevant payment period, the Supplier is entitled to suspend its obligations pursuant to the contract and any other current contracts until full payment has been made, without prejudice to the Supplier's right to damages and without any obligation to compensate the Customer for any loss. 4.5 The Customer waives any right to set off any claim. Accordingly, the Customer may never evade any claim due the Supplier by reliance on any claim set-off. Each payment shall be considered to be applied first in payment of the claim outstanding for the longest period, even though the Customer states that the payment pertains to a more recent claim. 4.6 The Supplier reserves the right to return any goods, materials, equipment and the like which the Customer may make available to the Supplier, only after the Customer has made full payment of all amounts owed. 4.7 If the work is performed on the basis of subsequent calculations, the Supplier shall bill the Customer on a monthly basis. The provisions of Articles 4.1 through 4.6 shall apply accordingly. 5 Delivery 5.1 The delivery deadlines if any stated by the Supplier have been fixed to the best of the Supplier's knowledge and in accordance with the Supplier's best intentions on the basis of the information of which the Supplier was aware at the time the contract was concluded; these delivery deadlines shall be observed to the maximum possible extent. In the event that the activities are delayed or if delay in the activities is foreseeable, parties shall notify each other as soon as possible thereof. 5.2 The Supplier shall develop and deliver the work to the Customer in accordance with the specifications, in the form, within the planning and on the delivery date as agreed (will be agreed) between parties. 5.3 If the Supplier executes any specific changes in and/or additions to the specifications for the work to be supplied by the Supplier, and does so at the request of the Customer, the Supplier may having first consulted the Customer postpone the delivery date of the Work to the extent that this is required in order to execute the relevant changes or additions. 5.4 Except upon the basis of any intentional act or omission (opzet) or gross negligence (grove schuld) on the part of the Supplier, the Supplier's mere failure to meet any delivery deadline shall not put the Supplier in default and shall not entitle the Customer to dissolve the contract. The parties shall then consult as soon as possible in order to set a new deadline for delivery. 5.5 The risk of any partial or full loss of or damage to property forming the subject matter of a contract shall pass to the Customer upon the departure thereof from the office and/or warehouse of the Supplier. 6 Retention of title 6.1 The Supplier shall retain title to any goods supplied as regards all claims against the Customer it has or may obtain by virtue of (failure to comply with any obligation arising from) any contract. DigitasLBi Belgium nv/sa 2

3 6.2 The Customer shall not be entitled to encumber the goods which are subject to the Supplier's retention of title, or to transfer title to these goods to any third party. Nor shall the Customer exercise any licenses and/or rights of use granted by the Supplier in relation to such goods. 7 Customer cooperation 7.1 The Customer shall always grant the requisite cooperation and make all the requisite data, information, documentation, materials software of third parties, assets and/or other prerequisites which will be described in writing by parties (hereinafter: the prerequisites) for the proper performance of the contract available to the Supplier in a timely manner. Furthermore the Customer will inform the Supplier in time about his decisions, evaluate received documents on time and furnish all the requisite co-operation in order to enable the supplier to meet the delivery date. The Customer guarantees the Supplier that the former is entitled to dispose of the prerequisites it has made available to the Supplier and shall indemnify the Supplier against all liability in that regard. 7.2 In the event that the Customer fails to place the prerequisites as referred to in article 7.1 at the Supplier's disposal or fails to do so on time or in accordance with the arrangements made, or in the event that the Customer otherwise fails to satisfy its obligations, after consultation with the Customer, the Supplier shall be entitled to suspend contract performance and the delivery date without being obliged to pay the Customer any kind of compensation. Furthermore the Supplier is entitled to charge any resulting costs and additional work in accordance with its regular rates. 7.3 If the employees of the Supplier and/or third parties are to perform work, in the execution of a contract, at the Customer's premises or at any other site designated by the Customer, the Customer shall be responsible for providing, at no charge, any facilities reasonably required by such employees. 8 Cooperation of third parties 8.1 If, at the request of and with the consent of the Customer, the Supplier contracts out all or part of the supply of certain goods, the provision of certain services and/or work to one or more third party(ies), the Supplier may, upon request of the Customer act as its lawful representative. 8.1 Any contracts to be concluded with any third party by the Supplier on the Customer's behalf, in conformity with the provision of article 8.1, shall be deemed to have been concluded directly between the Customer and any such third party. When available, the general terms and conditions of delivery of such third party shall apply. The Supplier accepts no liability in the matter. This applies to, inter alia,all 3 rd party software and corresponding EULA s, such as, CMS, E-commerce, Marketing platform software, Map and location software, Search engine software, etc... At the request of Customer, Supplier shall provide Customer with these terms & conditions. 9 Intellectual property rights 9.1 The Supplier will grant the Customer the non-exclusive right to use the work delivered by the Supplier to the Customer for all time for the purpose as described in the relevant offer, bid or contract. In principle all the (intellectual) property rights in the by the Supplier to the Customer delivered work, such as but not limited to, software, concepts, designs, documentation, offers, the information or data stored therein, the preparatory material shall be exclusively reserved for and remain vested in the Supplier, with the exception of prerequisites which are delivered by the Customer, unless agreed otherwise in writing. In the absence of the Supplier's written consent, the Customer shall not be entitled to use the work supplied in any other manner and/or to place all or part of the rights and/or powers conferred at the disposal of any third party, to transfer these rights and/or to grant any license to same. DigitasLBi Belgium nv/sa 3

4 In case parties agree in writing that (part of) the (intellectual) property rights of (any part of) the work supplied shall be transferred to the Customer, for which the Supplier can charge an additional fee to the Customer, the transfer of the intellectual property rights shall take place under the condition subsequent ( ontbindende voorwaarde ) of the non fulfilment of the Customer s payment obligations within the agreed payment term extended with a reasonable term after written notice of default from the Supplier. In the event that the Customer subsequently fulfils her payment obligations for the relevant contract, the transfer of intellectual property rights to the Customer shall take place once again and shall be deemed to have taken place at the time of origination thereof after all. In the event the intellectual property rights are transferred, the Customer will not acquire exclusive rights of the elementary components of the work developed by the Supplier, since no intellectual property rights are vested in such elements. 9.2 The Supplier shall be entitled to display its logo and state its name on the work supplied, the credits and/or the source codes of the software thereof. 9.3 The Supplier reserves the right to use all or any part of the goods developed for the Customer for promotional, acquisition and/or demonstration purposes. 10 Confidentiality 10.1 Whether during the term of the contract or otherwise, parties shall be required to maintain secrecy regarding the confidential information that comes to their knowledge, and not to disclose it in any manner to any third party and/or to provide it for use; each party shall use the information exclusively for the purpose for which it was placed at the it's disposal. Third parties shall also include all persons working in the organisation of each party who do not need to be informed of the information Within the meaning of these Terms and Conditions, the term "confidential information" shall be defined as: (i) all information provided directly or indirectly in written, oral or other form which is designated as confidential and/or which the other party knows to be or should reasonably understand to be confidential; (ii) all product, marketing, customer and/or other business information designated as such and/or which the other party knows to be or should reasonably understand to be confidential, regardless of the manner in which it has been provided; (iii) all documentation, data, drawings, benchmark test(s) and benchmark data, specifications, object codes, source codes, production methods, technologies and/or other information in connection with software (to be) developed by one party that is designated as confidential and/or which the other party knows to be or should reasonably understand to be confidential, regardless of the manner in which it has been provided; (iv) any copy in any shape or form of the above The parties obligations shall not apply in regard to confidential information as to which the receiving party can prove that (i) it is generally known and/or publicly available or (ii) that it was already known to it and not subject to any confidentiality obligation prior to it being furnished to the it by the other party For the term of the contract and for a period of one year thereafter, parties shall not employ or otherwise retain the services of any of the other parties or her affiliates (former) employees in her company and/or affiliates Customer ensures that all personal data provided by the Customer for processing purposes is collated and managed in accordance with the applicable data protection laws. 11 Liability 11.1 Parties shall accept their statutory obligations to pay compensation only if and to the extent that this liability is evidenced on the basis of the provisions in this Article Parties' total liability on the grounds of a breach on its part in performing a contract shall be limited to the payment of compensation for direct damage up to the amount of the price agreed for that contract, not including VAT, subject to a maximum of 500,000 (five DigitasLBi Belgium nv/sa 4

5 hundred thousand euro). If the contract is mainly a long-term contract with a term of more than one year, the agreed price shall be set at the total amount of the payments, not including VAT, agreed for a year, subject to a maximum of 500,000 (five hundred thousand euro). For the purposes of these General Terms and Conditions, "direct damage" of the Customer shall be exclusively understood to mean: (i) the reasonable costs that the Customer has been forced to incur in having the Supplier's performance satisfy the terms of the contract; (ii) the costs that the Customer has incurred in connection with it having been necessary for it to keep its old system(s) and related facilities operational for a longer period due to the Supplier not having effected delivery by or on an essential delivery deadline, minus any cost savings realised due to the delayed delivery; (iii) reasonable costs incurred in determining the cause and scope of the damage, to the extent that this determination concerns direct damage within the meaning of these (iv) General Terms and Conditions; reasonable costs incurred in preventing or limiting the damage, to the extent that the Customer has acted properly in the Supplier's interest. Parties liability for indirect damage, which shall include but not be limited to consequential damage, loss of profit, lost savings, damage caused by business stagnation, missed contracts and/or damage to the reputation of the other party, shall be excluded Parties total liability for damage caused by death or bodily injury or for physical damage to property shall be limited to 1,000,000 (one million euro) per event, whereby a series of connected events shall qualify as one single event Apart from the events specified in Articles 11.2 and 11.3, parties shall not be liable to pay compensation, regardless of the grounds on which a claim for compensation may be based. The maximum amounts specified in Articles 11.2 and 11.3 shall, however, not apply if and to the extent that the damage is a result of an intentional act or omission or gross negligence on the part of the party that is liable to pay compensation Liability on the part of either party on the grounds of a breach of contract shall arise only if the other party sends the breaching party written notice of default without delay, and sets a reasonable term in which the breaching party may as yet rectify its default, and the breaching party then continues to be in default after the expiry of said term. The notice of default must contain as detailed a description as possible of the breach so as to enable the breaching party to respond adequately In all cases, a prerequisite for the subsistence of any right to compensation shall be that the damage is reported to the other party in writing as soon as possible after the damage arises. The right to compensation will lapse after 90 days after the delivery date, or, in case the contract has been terminated prematurely, 90 days after the date of termination of the contract The Supplier shall not accept any liability for any damage caused by goods supplied by or through the Supplier being used in a manner other than the one agreed upon between the parties Any advice furnished by the Supplier shall be to the best of the Supplier's knowledge. The furnishing of advice by the Supplier shall not release the Customer from its obligation to carry out its own research into the suitability of the goods and/or the services to be supplied for their intended purpose The Supplier shall accept no liability whatsoever for the total or partial loss of content and/or data The Customer shall indemnify the Supplier against all claims by third parties resulting from a defect in a product or system that the Customer has supplied or resulting from any other action or omission taken on behalf or on instruction of the Customer, such as but not limited to registration of a domain name The Customer shall not, under any circumstances, use the services or facilities provided, including servers and storage facilities, to commit any offence or to cause any loss, nuisance or damage to the Supplier or third parties. The Customer shall hold Supplier harmless to all third party claims incurred by Supplier in that respect. DigitasLBi Belgium nv/sa 5

6 12 Force majeure 12.1 In the case of an event of force majeure, that is to say, a breach the cause of which does not lie with one of the parties, for which it is not at fault and for which it is not accountable by statute or pursuant to generally accepted standards, the party concerned shall notify the other party thereof in writing, stating the cause, nature and expected duration of the event and the provisions of the contract which it will not be possible to perform as a result. Performance of the relevant provisions shall be postponed for the duration of the event of force majeure If the event of force majeure lasts until two months after the date of the aforesaid notification, the parties shall endeavour to reach agreement about amending the provision(s) in the contract that have been postponed as a result of the event. In the absence of such agreement being achieved within one month, either party may terminate the contract, without being obliged to pay the other party any kind of compensation. The Supplier shall, however, retain the right to receive payment for the goods already supplied and work or services already provided. 13 Premature termination 13.1 If one of the parties, having received a written demand from the other party, continues to default on any of its essential obligations under a contract and/or these General Terms and Conditions, the party concerned shall be entitled, without further notice of default of the other party or court intervention, to terminate the relevant contract, with immediate effect and without being obliged to pay the breaching party any kind of compensation, by means of a registered letter. This shall not prejudice the Supplier in exercising its other statutory rights, such as the right to compensation and its right to receive payment for goods already supplied and work or services already provided Each party shall also be entitled to terminate a contract with immediate effect, without any notice of default or court intervention being required, and without being obliged to pay the other party any kind of compensation, if the other party applies for or is granted a (temporary) suspension of its payment obligations, applies for its own bankruptcy or is declared bankrupt, ceases its business operations, if a considerable part of its assets are attached, the legal entity status of the other party is dissolved or if control over or the majority voting rights in the other parties legal entity come to rest with a third party. This shall not prejudice the Supplier in exercising its other statutory rights, such as the right to compensation and its right to receive payment for goods already supplied and work or services already provided. 14 Miscellaneous provisions 14.1 Additions and amendments to a contract concluded by the parties and/or to these General Terms and Conditions which govern such contracts shall be valid only if agreed to in writing and signed by both parties. If the parties have agreed in writing to certain additions and/or amendments, these shall apply exclusively to the specific order for which they have been agreed The voidness of any provision in these General Terms and Conditions shall not affect the validity of the other provisions. In the event of a void or voidable provision, the Supplier and Customer shall adopt a new provision in mutual consultation to replace the provision in question. In this context, the purpose and the scope of the void, avoided or voidable provision shall be taken into account as much as possible Contracts between the parties, these General Terms and Conditions as applicable to such contracts and the performance thereof shall all be governed by the laws of Belgium Any disputes ensuing from or connected with a contract between the parties shall, in so far as they cannot be resolved amicably, be submitted to the exclusion of all other courts to the competent court in Brussels, Belgium. Nevertheless, the Supplier shall have the right to submit a dispute for adjudication to the competent court in the place of residence of the DigitasLBi Belgium nv/sa 6

7 Customer The headings that introduce the Articles herein have been provided for the convenience of the reader. No rights may be derived from these headings The parties shall be obliged to report any change of address to the other party in writing and without delay. SPECIAL PROVISIONS ON THE DEVELOPMENT OF SOFTWARE The provisions set out in this section shall be applicable alongside the General Provisions in these General Terms and Conditions if the Supplier develops software on the instructions of the Customer. 15 Delivery, installation and acceptance 15.1 The Supplier shall develop the software and deliver it to the Customer on an information carrier of a type and format to be agreed between the parties and in accordance with the functional and/or technical specifications that the parties shall set out in writing. The Supplier shall develop the software with care on the basis of the information supplied by the Customer, the accuracy, completeness and consistency of which shall be guaranteed by the Customer The Supplier may apply technical measures to protect the software it supplies. If the Supplier has secured the software by technical means, the Customer shall not be permitted to remove and/or circumvent such security device(s). If the security measures are such that the Customer is not able to make a back-up copy of the software, the Supplier shall, at the Customer's request, furnish the Customer with a back-up copy If the parties have agreed in writing to the performance of an acceptance test, the Customer shall have a period of ten working days as from the delivery of the software in which to test whether the software satisfies the specifications as referred to in Article 15.1 (the "test period"). The acceptance test shall take place in an environment as agreed between parties in advance and in accordance with an agreed procedure. Acceptance of the software may be withheld only on the grounds of the software failing to satisfy the specifications, unless minor defects in the software are involved, being defects which do not reasonably prevent the software from being put into operational and/or productive use, and without prejudice to the Supplier's obligation to remedy these minor defects at no charge If, during the test period, it becomes apparent that the software does not satisfy the specifications as referred to in Article 17.1, the Customer shall so notify the Supplier in writing on, at the latest, the final day of the test period, describing the specifications which the software does not satisfy ("the defects"), in which case the test period shall be interrupted. The Supplier shall then proceed to remedy the defects specified in the aforesaid notification as quickly as possible and redeliver the software to the Customer, without this involving any costs for the Customer. At the time of the software's redelivery, the test period of 10 working days shall recommence. Should the Customer then encounter new defects in the software as a result of its not satisfying the specifications, i.e. defects that were not already present during the previous test period and which, therefore, the Customer could not have reported to the Supplier during the previous test period, the procedure described above shall be repeated The Customer shall be deemed to have accepted the software: (i) upon delivery, in cases where the parties have not agreed on an acceptance test; or (ii) upon expiry of the test period, in cases where the parties have agreed on the performance of an acceptance test; or (iii) once the Supplier has remedied the defects reported in the notification, in cases where the parties have agreed on the performance of an acceptance test and the Customer has sent the Supplier a notification as referred to in Article 15.4 during that test period; or (iv) by putting into use the software If the software is delivered and tested in stages and/or parts, the non-acceptance of a certain DigitasLBi Belgium nv/sa 7

8 stage and/or part shall not prejudice any acceptance of another stage and/or part. 16 Warranty 16.1 For a period of one month after delivery or, if agreed on, the expiry of a test period, the Supplier shall remedy for free any defects in the software as a result of its not satisfying the specifications or (in as far as other criteria were agreed during the test period) its not satisfying the written acceptance rapport, if and to the extent that it is notified of these defects in writing by the Customer within this period. The Supplier does not warrant that the software will operate without interruption and/or defects and/or that it will be possible to repair all defects The Customer shall be responsible for the correct and judicious use/application of the software, as well as having control and security procedures and effective system management in place The Supplier shall be entitled during the aforementioned warranty period to charge its customary commercial rates and the repair costs if the defects in the software have been caused by errors in using and/or the injudicious use of the software and/or by other causes for which the Supplier is not responsible The warranty obligations shall lapse if the Customer has made or has had changes made to or in the software without Supplier s prior written consent. The restoration of damaged or lost data shall not fall within the scope of the warranty obligations Defects shall be repaired at a location to be determined by the Supplier. The Supplier shall be entitled at its own discretion to introduce definitive or temporary solutions or program detours and/or problem-avoiding restrictions into the software After expiry of the warranty period described in this Article, the Supplier shall not be obliged to repair any defects in the Software, unless the parties have concluded a maintenance or service level contract for this purpose. 17 Right of Use 17.1 Without prejudice to the provisions in Article 11 of these General Terms and Conditions, the Supplier shall grant the Customer the non-exclusive right to use the software, which right shall pertain exclusively to the right to load and run the software The source codes of the software and the technical documentation produced in the development of the software shall not be supplied to the Customer. In case the Customer wishes to have (technical) documentation, the Customer should request for a price quotation of the Supplier The Customer shall return all the copies of the software in its possession to the Supplier if the aforementioned right to use the software is terminated. If the parties have agreed that, at the end of the right of use, the Customer shall destroy the copies in question, the Customer shall provide the Supplier with confirmation of such destruction without delay. 18 Maintenance/service level 18.1 Upon request of the Customer parties may conclude a maintenance and/or service level agreement. The provisions of these General Terms and Conditions shall be applicable on (the performance of) the maintenance, hosting and/or service level agreement The Supplier shall repair defects in the software to the best of its ability within the term stated in the relevant contract. The defects shall be repaired at a location to be determined by the Supplier. The Supplier shall be entitled at its own discretion to introduce definitive or temporary solutions or program detours and/or problem- avoiding restrictions into the software. The Supplier cannot guarantee that the software will operate without interruption and/or defects and/or that it will be possible to repair all defects The Customer shall be responsible for the correct and judicious use/application of the software, as well as having control and security procedures and effective system management in place. DigitasLBi Belgium nv/sa 8

9 18.4 With respect to work consisting of the restoration of damaged and/or lost data, the Customer should request for a price quotation of the Supplier as well as for the repair of defects which result from changes which the Customer has (had) made to or in the software without the Supplier's prior written consent. Furthermore the Supplier shall be entitled to charge its customary commercial rates and the repair costs if the defects in the software have been caused by errors in using and/or the injudicious use of the software and/or by other causes for which the Supplier is not responsible. DigitasLBi Belgium nv/sa 9