General conditions

1. Applicability

1.1. These terms and conditions apply to all quotations, proposals and invoices prepared by and agreements entered into by Cyberplan BV (hereinafter referred to as “Service Provider”), a company incorporated under Belgian law with its registered office at 9250 Waasmunster, Patotterijstraat 76, registered in the business register of Ghent, Dendermonde division, under the number 0736.573.161, to the exclusion of any purchase or other terms and conditions of the Customer, except in the case of written and express agreement by the Service Provider.

1.2. The Customer must merge these general terms and conditions with the body of documents and descriptions of each specific order.

2. Offer and Agreement.

2.1. Any quotation prepared is valid only with respect to the person(s) to whom it is addressed.

2.2. The quotation has a validity period as stated on the quotation itself, or failing that, a validity period of 30 calendar days from the date of shipment.

2.3. An Agreement between Service Provider and Customer is concluded as soon as the Customer accepts a prepared quotation by signature, whether digital or not, by any other confirmation by the Customer or after the Customer’s request to commence work. An acceptance by electronic means of communication or verbally is equally valid.

3. Completion

3.1. Completion shall be made according to the agreed deadline, but such deadline is only approximate and is stated for indicative purposes only. The Service Provider reserves the right to delay delivery for qualitative reasons, but must notify the Customer.

3.2. The Customer acknowledges that the Service Provider’s ability to fulfill its obligations with respect to the performance of the Services is dependent upon the Customer’s timely cooperation with the Service Provider, as well as the accuracy and completeness of all information and data the Customer provides to the Service Provider. The Customer shall allow the Service Provider access to, and use of, all information, data and documentation that the Service Provider deems necessary to enable the Service Provider to perform its obligations under this Agreement.

3.3. Late delivery of texts and models, changes, images, logos, house styles, login data and the like, by the Client, may extend the delivery time and increase the cost.

4. Acceptance

4.1. Once the services related to software development are made available to the Customer for testing, they shall be considered provisionally delivered and accepted. If the Service Provider has not received a written counter notification within five (5) business days after the Service Provider has made the software available for testing, the Customer’s final acceptance of the services shall be deemed to have occurred, which means that additional changes will be invoiced separately by the Service Provider on a cost-plus basis.

5. Duration and termination

5.1. Unless otherwise stated, each agreement is valid for an initial period of one (1) year. This term is tacitly renewed for an indefinite period after the expiration of one year.

5.2. Any agreement is automatically and by operation of law terminated in the event of bankruptcy of Customer or Service Provider. All amounts owed to the Service Provider shall remain due and payable.

5.3. In case of cancellation of the agreement, the Customer shall owe a lump-sum compensation of 50% of the total fees in case of cancellation within 14 calendar days after the conclusion of the agreement and a lump-sum compensation of 100% of the total fees in case of cancellation later than 14 calendar days after the conclusion of the agreement. All costs already incurred for the purpose of the performance shall also be invoiced.

6. Hosting

6.1. The Customer does not pay a fee for installation, updates, support and maintenance regarding the system on which the service is hosted, if the service is hosted on infrastructure of the Service Provider (or its subcontractors).

6.2. The Customer shall pay a fee of ONE HUNDRED FIFTY (150) EUR/hour for installation, updates, support and maintenance, if the Customer provides the hosting himself or has it provided by a party of his own choosing and the service is thus not hosted on infrastructure of the Service Provider (or its subcontractors).

6.3. The fee(s) is/are exclusive of VAT and exclusive of all other costs and expenses the Service Provider may incur, such as travel time and expenses, unless otherwise expressly agreed in writing with the Customer.

6.4. The Service Provider reserves the right to modify the fees mentioned in this article on an interim basis, no more than once a year, but no earlier than one (1) year after the commencement of the Agreement. The change can only be made within the legal limits and only as a result of cost increases and/or changes in the exchange rate ratio and/or price increasing measures taken by the Belgian government.

6.5. Either party has the right to terminate the hosting agreement at any time and for any reason by giving six (6) months written notice.

6.6. Each party has the right to terminate the hosting agreement and that simply by sending a written notice of termination:

6.6.1. in the event of a material breach of the hosting agreement by the other party, provided that such breach is not remedied within a period of 30 calendar days;

6.6.2. in the event of a Force Majeure Event lasting longer than sixty (60) calendar days.

6.7. Either party has the right to terminate the hosting agreement with immediate effect by merely sending a written notice of termination:

6.7.1. in the event that the other party is declared bankrupt or files for bankruptcy, that a petition for bankruptcy is filed against it, or that it is manifestly insolvent;

6.7.2. in case of dissolution and/or liquidation of the other party’s business;

6.7.3. if part or all of the other party’s assets have been seized in executive or custodial action or other executive or custodial action has been taken.

6.8. The Customer indemnifies the Service Provider against all legal claims regarding the data posted by the Customer. The Service Provider is not responsible for the content of the Customer’s site unless otherwise agreed in writing. Damage caused by incompetence, illegal actions and spamming by the Customer shall be borne by the Customer.

6.9. The Service Provider reserves the right to shut down hosting in the event of non-performance by the Customer and after a warning. The Service Provider reserves the right to remove or shut down hosting that endangers its operation.

7. External service providers

7.1. For certain services, the Service Provider may use external service providers as necessary for the proper performance of the services. The Service Provider may appoint such outside service providers in its sole discretion.

7.2. At the Customer’s request, the Service Provider may take over the management of services or software provided or developed by an external party. The Service Provider can never be held liable or responsible for any errors committed by this external party.

7.3. At the Customer’s request, the Service Provider may link its solutions to other systems managed by the Customer or an external party. The Service Provider can never be held liable nor responsible for unavailability of or errors directly or indirectly caused by such external systems.

8. Liability

8.1. The Customer shall respect the applicable legal provisions and any contractual obligations, and shall indemnify the Service Provider for all direct and indirect damages and costs caused by any breaches committed by the Customer, as well as claims by third parties. This indemnification shall continue to apply even after the termination of the Agreement.

8.2. The Customer expressly acknowledges that the Service Provider can only be held liable for damages as a direct result of intentional and culpable fault of the Service Provider.

8.3. The Service Provider shall not be liable for indirect damages of the Customer, such as, but not limited to, lost profits, financial or commercial losses, loss of production, increase in general expenses, increased administrative costs, loss or corruption of data, loss of contracts, intangible damages and loss of clientele.

8.4. In any event, the Service Provider’s liability can never exceed the amount of its due compensation (excluding the amounts invoiced to the Customer for the execution of the order by external service providers as referred to in Article 11.6 of these General Terms and Conditions).

9. Suspension

9.1. The Service Provider has the right to temporarily or permanently deny access to the service to the Customer in case of misuse of the service by the Customer or third parties.

9.2. The Service Provider shall have the right to suspend access to the Service if the Service Provider needs to perform any (emergency) maintenance on the Service that cannot be performed without suspending or limiting access.

10. Fees

10.1. The Customer shall pay the fees as stated on the quotation, and/or as agreed upon by electronic means of communication and/or verbally.

10.2. The fee(s) is/are exclusive of VAT and exclusive of all other costs and expenses the Service Provider may incur, such as travel time and expenses, unless otherwise expressly agreed in writing with the Customer.

10.3. The Service Provider reserves the right to modify the fees in the interim, at most once a year and at the earliest one (1) year after the conclusion of the agreement. The change can only be made within the legal limits and only as a result of cost increases and/or changes in the exchange rate ratio and/or price increasing measures taken by the Belgian government.

11. Invoicing and payment

11.1. The Service Provider shall invoice 50% of the fees prior to commencement of services. The Service Provider may condition the commencement of services on receipt of payment of the advance invoice. The residual balance will be invoiced two weeks after preliminary delivery, as described in clause 4.1.

11.2 Notwithstanding Article 11.1, if the Customer uses the SME Portfolio for the assignment, The Service Provider shall invoice the full fees prior to commencement of services. The Service Provider may condition the commencement of services on receipt of payment of the invoice.

11.3. Invoices are payable within 14 days of invoice date.

11.4. In case of dispute, the invoice must be protested, on pain of forfeiture, in a reasoned manner within 14 days of the invoice date.

11.5. Complaints regarding performance must be submitted in writing within 14 days of the invoice date at the latest, with the reason for dispute. The Service Provider’s liability is limited to the (partial) refund of the price received for the non-conforming part of the service. The Service Provider disclaims all further responsibility, including for all damages caused to persons or goods by merchandise delivered or sold.

11.6. Upon expiry of the payment period, the Service Provider shall send a notice of default for payment and give the Customer an additional reasonable period to pay the invoice. If the Customer fails to pay the invoice within the additional period, the price shall be increased, ipso jure and without the need for any notice of default, by a lump sum compensation of 10% of the invoice amount, with a minimum of EUR 150.00, corresponding to the nuisance thus suffered by the Service Provider, as well as the administrative costs incurred in this regard, excluding court costs and the costs and fees of counsel appointed by the Service Provider. In addition, an interest on arrears, calculated in accordance with the Law of August 2, 2002 on late payments in commercial transactions, shall be payable by operation of law and without the need for any formal notice.

11.7. If the Service Provider uses external service providers (Google, Facebook, etc.) for the execution of the order, the costs charged by these external service providers will always be invoiced in full, with a minimum margin of 2.5%, to the Customer. The Service Provider reserves the right to request a (periodic) advance on these costs or to pre-invoice them in full or in part.

11.8. If the delay in payment of an invoice exceeds 60 days, the Service Provider is entitled to immediately terminate the Agreement or the entire cooperation without paying any compensation.

12. Non-exclusivity

12.1. The Service Provider reserves the right to provide services to competitors of the Customer, except as otherwise provided in writing.

13. Non-solicitation clause

13.1. Without the consent of the Service Provider, the Customer shall not be entitled to employ, contract or otherwise cooperate with any employees of the Service Provider during the term of the Agreement and for twelve (12) months after its termination or expiration.

13.2. If the Customer, in violation of the above, hires, contracts or otherwise cooperates with such employee, the Customer in violation of the above shall be required to pay the Service Provider liquidated damages in the amount of EUR 50,000.00. Such amount shall be due and payable on the date the person is employed or contracts or otherwise works with the Customer.

14. Force majeure

14.1. The Service Provider is not liable for (consequential) damage caused by force majeure. As such is considered inaccessibility of the server due to events not attributable to the Service Provider such as power failure or malfunction.

15. Intellectual property rights and indemnification

15.1. All intellectual property rights with respect to the Service shall remain with the Service Provider or its licensors. The Service Provider grants the Customer a non-exclusive, non-transferable, non-sublicensable right to use the software for the Customer’s internal business purposes. The right to use the software does not include the right to modify, copy, translate, distribute or otherwise exploit the software, commercially or otherwise, for any purpose other than its internal business purposes. The Service Provider shall defend, indemnify and hold the Customer harmless from and against all damages, losses, expenses and costs that would result from any claim brought by a third party alleging that the Service infringes the intellectual property rights of the third party. The Customer shall immediately notify the Service Provider of any claim it receives. At the Service Provider’s request and expense, the Customer shall provide the Service Provider with its reasonable cooperation in defending itself against the claim.

15.2. Without prejudice to the Customer’s right to claim damages, the Service Provider shall, at its own expense and by mutual agreement with the Customer:

15.2.1. for the Customer to acquire the right to continue using the service;

15.2.2. modify the service so that it no longer infringes third-party intellectual property rights;

15.2.3. refund the Customer all fees paid with respect to the service.

15.3. All intellectual property rights related to the materials (i.e., the data, inputs and information uploaded to the Service by the Customer or its authorized users) will continue to belong exclusively to the Customer. The Service Provider will only receive a limited license to use and store the materials for the hosting, delivery, support and maintenance of the service and only for the duration of the Agreement.

16. Warranty

16.1. The Service Provider will perform its obligations with respect to the performance of the Services with reasonable care and skill and in accordance with good industry practice.

16.2. Except as otherwise expressly provided herein, all other conditions, warranties, undertakings and representations of any kind, express or implied, whether by statute, common law or otherwise, with respect to the Services are hereby excluded by the Service Provider to the fullest extent permitted by law, and the Service Provider shall have no other obligation, duty or liability under any contract, tort, statute or otherwise to the Customer.

17. Confidentiality

17.1. Each party shall keep confidential all information it receives regarding the other party, its technical and operational structure, its products and services, its financial information, its personal data, the materials, its intellectual property and the service.

17.2. All information exchanged may only be used for the performance of the Agreement and may only be shared with employees within a party’s organization who have a need to know such information. Neither party has the right to disclose confidential information to a third party without the prior written consent of the other party. Both parties undertake to take reasonable measures to protect the other party’s confidential information, which in any event will be no less stringent than those it takes for its own confidential information.

17.3. The following types of information do not constitute confidential information:

17.3.1. information lawfully obtained from a third party;

17.3.2. information lawfully known to a party prior to entering into the Agreement;

17.3.3. information that has not entered the public domain through any act or omission of any party;

17.3.4. information independently developed without violating the Agreement.

17.4. If a Party is required by a law or decision of a regulatory, administrative or otherwise competent authority to disclose Confidential Information, such Party shall notify the other Party of such request, if permitted, in order to enable such Party to take appropriate measures to prevent or limit disclosure. If the Party obligated to disclose the information is not entitled to inform the other Party, the disclosure of confidential information shall be limited to that which is strictly necessary for that Party to comply and it shall notify the other Party that it has disclosed the information as soon as permitted.

17.5. After the termination of the Agreement, the confidentiality obligation will remain in effect for two years.

18. Data Protection

18.1. Each party must at all times comply with its respective obligations under all Applicable Data Protection Laws with respect to all personal data processed under the Agreement. To the extent that the Service Provider would process personal data for the benefit of the Customer in its capacity as processor, the Customer in its capacity as controller shall remain responsible for determining the purpose and manner of processing and the Service Provider shall comply with all instructions reasonably provided by the Customer in this regard.

19. Dispute Resolution

19.1. The contractual relationship between the Service Provider and the Customer shall be interpreted in accordance with and governed by Belgian law.

19.2. In the event of any disputes regarding the conclusion, execution, termination and/or interpretation of the Agreement, the parties undertake to engage in good faith discussions with a view to settling the dispute amicably.

19.3. Should the parties fail to reach an amicable settlement, the competent courts of Ghent shall have exclusive jurisdiction to settle the dispute.

20. Final Provisions

20.1. Amendments to the Agreement are valid only if they have been agreed in writing and signed by the authorized representatives of both parties. The customer acknowledges that these changes may have a possible impact on the price and time frame.

20.2. The Customer may not assign any rights or obligations under this Agreement without the Service Provider’s prior written consent. The Service Provider may assign this Agreement to an affiliate, parent or subsidiary of the Service Provider without the prior consent of the Customer.

20.3. If any provision or part of a provision of these General Terms and Conditions becomes void, illegal, invalid or unenforceable, the remaining provisions of these General Terms and Conditions shall remain in full force and effect. The parties shall negotiate in good faith to cure the nullity, illegality, invalidity or unenforceability of the provision in question by replacing it with a legal, valid or enforceable provision having the same, or substantially the same, effect and meaning as the original provision.

20.4. By signing, the Customer confirms having taken note of and agreeing to these general terms and conditions. The tacit acceptance of one invoice is also an acceptance of the general terms and conditions.