Boring, but essential
General Terms & Conditions
1. Definitions
1.1 General Terms and Conditions: These general terms and conditions emanating from the Service Provider.
1.2 Services: All services provided by the Service Provider under an Agreement.
1.3 Service Provider: The limited liability company OFF THE GRID with its registered office at 2018 Antwerp, Mechelsesteenweg 83 bus 1 and registered in the Crossroads Bank for Enterprises under number 0664.595.302.
2. General
2.1. The General Terms and Conditions shall apply to all quotations, work orders and Agreements of the Service Provider unless and to the extent that they are expressly deviated from in writing. In any event, the General Terms and Conditions shall prevail over any general terms and conditions of the Customer and/or any other third party, even if the Service Provider would not have expressly protested them.
2.2. All terms and conditions other than the General Conditions, as well as all deviations from the General Conditions, even if they emanate from appointees of the Service Provider, must be expressly confirmed in writing by the Service Provider before they can apply.
2.3. The Service Provider reserves the right to modify the General Terms and Conditions. Changes to the General Terms and Conditions will be communicated to the Customer in writing at least 1 month before they come into effect in a form chosen by the Service Provider. If the Customer has notified the Service Provider in writing within 14 days of notification of the change that it cannot agree to the change, it has the right to terminate the Agreement. If the Customer does not respond in writing or not within 14 days of notification of the change, the Customer shall be deemed to have accepted the new terms and conditions.
2.4. Technical information in the form of brochures, graphs, illustrations and the like are intended to give a general impression about the Service Provider (and its methods) and are not binding. Price lists and other advertising or promotional documents are for information purposes only and do not constitute an offer of contract.
2.5. Should any provision of the General Conditions and/or of any other Agreement between the Parties prove to be void in whole or in part, the other provisions shall remain in full force. In such a case, the Parties undertake to substitute a new provision in place of the invalid provision that approximates the purpose of the invalid provision as closely as possible.
3. Tenders and Agreements
3.1. Unless otherwise stated on the quotation, the period of validity of a quotation is 30 calendar days.
3.2. By the written acceptance of the quotation and plan of approach (branding and/or website) by the Client within the period of validity as indicated in Article 4.1., an Agreement is concluded between the Parties. The written acceptance of the quotation and the plan of approach (branding and/or website) implies an acceptance of the General Terms and Conditions, which shall always be communicated to the Client attached to the quotation.
3.3. If an Agreement is entered into in accordance with clause 4.2. on the basis of which the Services consist in whole or in part of the development of a website (whether or not including a web shop) by the Service Provider for the Customer, a Maintenance Agreement (Annex I) and Hosting Agreement (Annex II) are also entered into, both of which form an integral part of the Agreement.
3.4. The Agreement concluded with the Customer replaces all previously concluded and/or oral agreements relating to the same Services.
3.5. No modification or cancellation of the Agreement by the Customer will be possible after the confirmation of the offer and plan of action by the Customer in accordance with Article 4.2, unless mutually agreed upon in writing between the Parties and without prejudice to the possibility of termination of the Agreement, as explained under Articles 3.3, 14 and 19.
4. Performance of Services and Agreement
4.1. The Service Provider shall perform the Services in accordance with the rules of the art. In this respect, the Service Provider undertakes a purely best-efforts obligation.
4.2. The delivery and/or performance terms stated in the Agreement are purely indicative and do not bind the Service Provider. Delay in delivery shall never entitle the Customer to compensation or price reduction, nor to dissolution of the Agreement.
4.3. If the Parties have expressly agreed on a binding delivery period, such delivery period shall commence only from the time the Service Provider has in its possession all necessary information, documents, originals, pieces (clichés, models, designs, drawings, photographs, films) and images from the Customer. This delivery period shall be extended if the Customer fails to transmit all necessary information, documents, originals, pieces (clichés, models, designs, drawings, photographs, films) and images (in a timely manner) and to accept the (improved) proofs (in a timely manner), or if the Customer places additional orders, (for which the Service Provider may require the conclusion of a new Agreement).
4.4. In case of delays or defects in the delivery of the Services, the Customer cannot obtain supplies elsewhere at the Service Provider’s expense. In case this delay is caused by amendments to the Agreement in accordance with clause 4.5. the delivery period will be extended. To the extent that the delay gives rise to additional costs, these will be charged by the Service Provider to the Customer.
4.5. If the Services are to be performed within a shorter than the normal or between the Parties agreed delivery period due to changes to the Agreement in accordance with clause 4.5, the additional costs incurred as a result will be charged by the Service Provider by to the Customer.
5. Transfer – subcontracting
5.1. The Customer is not permitted to assign its rights and obligations under the Agreement, in whole or in part, to third parties except with the prior and express written consent of the Service Provider.
5.2. The Service Provider reserves the right to engage third parties in order to entrust them with all or part of the performance of the Agreement.
6. Relationship between the Parties
6.1. The Service Provider performs the Agreement in complete freedom and independence. There is no hierarchical relationship between the Customer and the Service Provider (or the staff members, employees, subcontractors or suppliers that the Service Provider calls upon for the performance of the Agreement).
6.2. The Customer agrees not to exercise employer authority over the staff, employees, subcontractors or suppliers relied upon by the Service Provider for the performance of the Agreement. In the event the Service Provider acts as a subcontractor for the Customer, the Customer represents that the end customer will not do so either. In case the Customer or end-customer gives instructions to the Service Provider’s staff members, employees, subcontractors or suppliers, these will be strictly limited to instructions in the field of well-being and safety at work and instructions within the framework of the performance of the Agreement such as instructions related to the contractually agreed Services, in particular: instructions related to the proper performance of the Services and concerning, inter alia, the purpose, priority, timing, delivery, quality, reporting on progress and the methodology and work processes used in providing the Services.
7. Price
7.1. All prices of the Service Provider stated and quoted in a quotation or offer are expressed in Euro and are exclusive of VAT and/or any other taxes. Any shipping costs or transport and accommodation expenses shall always be borne by the Customer.
7.2. The Service Provider is entitled to reasonably charge the Customer for additional work based on the Service Provider’s usual rates. Additional work shall be considered: all that is performed by the Service Provider at the request of the Customer in addition to the work set out in the Agreement. The Service Provider shall never be obliged to comply with such a request and may require that a separate written Agreement be concluded for the additional work requested.
7.3. Prices are subject to change without notice (this does not apply to current Agreements). Any introduction or modification of one or more taxes or duties of any kind shall be borne by the Customer, even for ongoing Agreements.
8. Payment
8.1. After concluding the Agreement in accordance with clause 4.2. and before proceeding to perform the Services under that Agreement, the Service Provider shall issue an invoice to the Customer
pursuant to which the Customer is bound to pay an advance in the amount of 50% of the value of the Agreement in accordance with clause 9.2. After performance of the Services, the Service Provider will issue an invoice to the Customer with the remaining balance, payable in accordance with Article 9.2.
8.2. Payment of each invoice shall be made on the applicable payment date by bank transfer to the bank account as indicated on the invoice. In any case, the payment period will not exceed 15 calendar days.
8.3. In the event of non-payment on the due date, interest on arrears shall be charged on the invoice amount, ipso jure and from the due date, at the legal interest rate provided for in the Law of August 2, 2002 on combating late payment in commercial transactions. This late payment interest is due without prior notice of default. The Customer who pays late shall also be liable for a fixed compensation for administrative and recovery costs, set at 10% of the invoice amount, with a minimum of EUR 150.00 (due ipso jure, without prior notice of default), and this without prejudice to the Service Provider’s right to claim a higher amount if it has to incur higher costs to obtain payment of the sums due.
8.4. In case of non or late payment, the Service Provider reserves the right to stop the deliveries of its Services, without being liable for any resulting damages.
8.5. Any non-payment of an invoice on the due date shall entail the exigibility of the invoices still outstanding at that time at the expense of the same Customer.
8.6. Disputes of invoices must be notified to the Service Provider within 7 working days of receipt of the invoice and must be justified. The payment obligation of the Customer shall not be suspended by such dispute.
9. Customer Materials
9.1. The Customer’s clichés, models, designs, drawings, photographs, films and any other goods of the Customer, which are necessary for the performance of the Services and the Agreement by the Service Provider, shall remain with the Service Provider at the expense and risk of the Customer. At no time shall the Service Provider be liable for any loss or damage to these materials of the Customer.
10. Retention of title
10.1. Notwithstanding Article 1583 of the old Civil Code, the transfer of ownership of the Products is subject to full payment of the price in principal and accessories. In case of non-payment – even partial – at the agreed time, the Service Provider may demand the return of the Products or even reclaim them, at the expense of the Customer.
10.2. The above provisions do not prevent the transfer to the Customer of the risk of loss or damage to the ownership of the Products subject to the retention of title, as well as the damage they may cause.
11. Liability
11.1. The Service Provider undertakes to perform all Services to be provided with care. The Service Provider shall never be liable for errors in execution due to insufficient or wrong input by the Customer. The Service Provider shall always choose quality technical material, and have the third- party suppliers of such material provide sufficient spare material. The Service Provider cannot be responsible for the failure of technical material, even if it directly or indirectly affects the performance of its Services, as this is a force majeure situation for the Service Provider within the meaning of Article 19. Therefore, regarding the services or products originating from third-party suppliers, the Service Provider does not accept any liability above or beyond the liability that the third-party suppliers are willing to accept for their products or services.
11.2. The different printing processes imply a difference in reproduction of colors. The Service Provider guarantees the most faithful reproduction possible within the technical possibilities, but shall never be liable if there is a difference in reproduction of colors. The Service Provider will correct the printing and word splitting errors indicated by the Customer, but is not responsible for spelling, linguistic or grammatical errors. The perfect conformity of the colors to be reproduced, the perfect immutability of the inks and the perfect immutability of the inking and of the register are not guaranteed. The Service Provider is not responsible for deviations inherent to the nature of the work to be performed.
11.3. The Service Provider shall not be liable for any indirect, consequential, immaterial or trading losses (such as, for example, without being exhaustive, loss of expected profits, decrease in turnover, increased operating costs, loss of clientele, image damage, which the Customer or third parties would suffer).
11.4. In case of liability for direct damages due to fraud, intent or gross negligence on the part of the Service Provider or its employees or appointees, any compensation may never exceed the value of the Agreement.
11.5. However, any limitation of liability as provided in Articles 12.1 through 12.4 will not apply if the damage involves physical injury or death.
11.6. The Customer shall defend, indemnify and hold harmless the Service Provider (and, if applicable, its employees and appointees) against all damages, losses, expenses and costs resulting from claims by third parties in connection with acts of the Customer (or third parties engaged by the Customer) or information, documents, originals and/or images of the Customer (which were provided to the Service Provider in order to enable it to provide the Services and perform the Agreement) that infringe the intellectual property rights of third parties. The Service Provider shall immediately notify the Customer of any claim it receives. At the Customer’s request and expense, the Service Provider shall reasonably cooperate with the Customer in defending the claim.
12. Warranty and complaints
12.1. Any complaint or protest about the Services and/or Products must be sent in writing to Off The Grid within 48 hours after the Service/Product was delivered to the Customer. The Service Provider will investigate the complaint or protest. In case the complaint or protest is confirmed by the Service Provider, the Service Provider will proceed to reperform the Services which may mean free repair or replacement of the relevant Products, to the exclusion of any other measure (such as damages or other compensation).
12.2. On the website developed by the Service Provider for the Customer under the Agreement, the Service Provider provides a warranty of 1 year from the delivery (go live) of the website to the Customer.
13. Termination of the Agreement
13.1. The Parties shall be entitled to terminate the Contract by simple registered notice, without further notice, without prejudice to the Customer’s obligation to pay any amounts still due and without prejudice to the right to indemnification, if any of the following circumstances arise: (a) if a Party, after written notice to comply with its contractual obligations (such as e.g. the payment of invoices) fails to fulfill these obligations; (b) if a Party is in a state of bankruptcy, insolvency or cessation of payments, its credit is shaken, or in case of liquidation or dissolution of such Party.
13.2. In the event of (premature) dissolution or termination of a started Agreement by the Customer or by the Service Provider due to a failure of the Customer, the Customer shall automatically owe the Service Provider liquidated damages of 20% of the value of the Agreement, subject to the right to higher damages if the Service Provider proves that the actual damages incurred exceed this amount.
14. Reference and mention
14.1. The Customer expressly agrees that the Products developed or Services provided by the Service Provider for the Customer may be included in its reference portfolio including photographs of the Products taken and edited by photographers as recommended to the Customer by the Service Provider. If the Customer cannot agree to this, it must expressly oppose it prior to execution of the Agreement.
15. Processing of personal data
15.1. The Service Provider collects the following personal data from the Customer in order to perform the Agreement with it: name, email address, telephone numbers, company data. These personal data may be shared with suppliers of various tools (web content management system, CRM, sales, invoicing, accounting, general document processing) and, if necessary, also outside the European Economic Area, with the necessary measures and safeguards being taken by the Service Provider to ensure adequate protection of personal data. Personal data will never be sold or passed on to third parties for commercial purposes.
16. Intellectual property rights
16.1. Each Party retains all intellectual property rights developed or acquired by a Party prior to entering into this Agreement or created outside of this Agreement.
16.2. The Service Provider grants the Customer an exclusive, non-transferable, non-sublicensable right to use the Products for the Customer’s business purposes (identification, advertising and branding), without the possibility of adapting, expanding, modifying or improving the Products, for an indefinite period of time in the territory of Belgium.
16.3. The Service Provider is and shall remain the sole and exclusive owner of all copyrights and design rights (whether registered or unregistered) and any other intellectual property rights relating to the Products (including any new versions, adaptations, extensions, modifications or improvements made to the Products) and this in the broadest sense, worldwide and for the maximum legal period of protection of the relevant rights.
16.4. Except for limited license rights expressly granted to Customer, nothing in these Terms and Conditions shall transfer any title, ownership rights, intellectual property rights or other proprietary rights of any kind to Customer or any third party.
16.5. Without prejudice to clause 18.2, arrangements may be made between the Customer and the Service Provider for the commercialization of the Products by the Customer. Where applicable, the Customer shall owe the Service Provider a “License Fee” for this purpose. The License Fee is calculated as follows: a fee equal to the percentage (as provided in the Agreement) of the net amounts received by the Customer on the sale of the Products during a given quarter. Within 10 days after the end of each quarter, Customer shall deliver to Service Provider a statement of the total number of Products sold and the net amounts received by Customer on the sale of those Products during that quarter. Upon receipt of the aforementioned statement, the Service Provider shall issue an invoice containing the License Fee to the Customer payable in accordance with Section 9.2.
16.6. If the Client breaches the above provisions, the Client shall owe OFF THE GRID compensation of EUR 10,000.00 per breach and EUR 1,000.00 per day that the breach continues. Without prejudice to OFF THE GRID’s ability to always claim higher compensation if the actual damages suffered are higher.
17. Force majeure
17.1. In case of force majeure, such as for example but not limited to natural disaster, fire, mobilization, embargo, lack of transport means, general supply problem, war, pandemics, epidemics, illness or strike of the Service Provider’s personnel, telecommunication problems, business disturbance, failure of technical material/products of a third party supplier and any other event not controllable by the Service Provider, the Service Provider shall always be entitled to suspend its commitments for as long as the force majeure situation persists. If the force majeure situation lasts more than 6 months, the Parties shall have the right to terminate the Agreement by operation of law, without the possibility of any compensation being due.
18. Notification
All notifications between the Customer and the Service Provider shall, unless otherwise stated, be made by e-mail via the e-mail address as stated above as well as the e-mail address provided by the Customer.
19. Distance
19.1. Except as expressly provided in the Agreement, the failure of either Party to exercise a right, in a particular situation, shall not constitute a waiver of that right or in any way affect the legal force of that provision in a subsequent equal/similar situation.
20. Applicable law and competent court
20.1. The General Terms and Conditions and all Agreements between the Service Provider and the Customer are governed exclusively by Belgian law.
20.2. For any disputes, the courts of Antwerp, Antwerp Division (Belgium) shall have exclusive jurisdiction.