Deliverables: All works, products, improvements, adaptations, inventions and innovationswhich result from the Services carried out by NOVEMBER FIVE in executionof its agreements with clients;
Intellectual Property Rights: All patent rights, trademarks, design and models, copyrights, rights in databases,proprietary rights in know-how, including trade secrets and other confidentialinformation, and any other form of legally protectable intellectual or industrialproperty rights under any jurisdiction whatsoever;
Services: The consultancy, development and related services with regard to the develop-ment of digital solutions provided by NOVEMBER FIVE to the client;
SOW: Statement of Work, all offers of NOVEMBER FIVE holding the specificationsof the Services and Deliverables to be delivered;
Third Party Changes: All changes made by third parties, such as, but not limited to, Appstores orFacebook, that result in a possible delay in the operation or the availability ofthe Deliverable(s).;
Ticketing System: A computer software package that manages and maintains lists of defects, bugsand shortages.
2.1 These general terms and conditions are applicable to all offers, in the form ofan SOW or otherwise, and agreements of B.V.B.A. NOVEMBER FIVE (here-inafter “NOVEMBER FIVE”), orally or in writing, concerning the delivery ofServices and/or Deliverables to clients, safe as explicitly accepted otherwise inwriting by NOVEMBER FIVE.
2.2 The client acknowledges to be informed of and to have accepted these gener-al terms and conditions, unless explicit other written arrangements have beenmade (for example in the form of a framework agreement between the parties).
2.3 These general terms and conditions exclude the application of any general orspecific terms and conditions of the client.
2.4 The fact that NOVEMBER FIVE does not require the strict application ofthe general terms and conditions does not imply any waiver or limitation ofits rights.
2.5 The nullity or non-applicability of one or more provisions of these generalterms and conditions will not have any effect on the validity or enforceability ofthe other provisions, which will remain fully applicable.
3. AGREEMENT / ORDER CONFIRMATION
3.1 All offers, in the form of an SOW or otherwise, by NOVEMBER FIVE arewithout engagement. There will only be a binding agreement between the par-ties, upon written confirmation of an order by NOVEMBER FIVE, or uponexecution of the order by NOVEMBER FIVE.
3.2 Only the directors and the person(s) that is (are) explicitly authorized by one ofthe latter (such as a dedicated project manager), is (are) entitled to enter into anagreement on behalf of NOVEMBER FIVE.
3.3 Once an order is accepted by NOVEMBER FIVE, it can only be cancelled ormodified by the client upon written authorization by NOVEMBER FIVE. Incase of cancellation by the client, without NOVEMBER FIVE’s prior writtenauthorization, the client will be held to pay a lump sum of 10% of the agreedprice (VAT excluded) with a minimum of 250 EUR, without prejudice to theright of NOVEMBER FIVE to claim an indemnity equal to its actual lossesand all costs related to Services already performed under the concerning order.
3.4 NOVEMBER FIVE is authorized to subcontract certain or all of its obligationsunder the agreement to a designated third party, and ensures that these generalterms and conditions also apply to such third party subcontractor.
4. TERM, DELIVERY AND TERMINATION
4.1 The agreement will commence on the effective date as mentioned on therelevant SOW and (except where a term is indicated on the SOW) will continue(unless lawfully terminated) until all Services by NOVEMBER FIVE have beenperformed, the Deliverables have been provided to the client and the client haspaid the fees due in respect of those Services and the resulting Deliverables.
4.2 Where a delivery date is indicated in the relevant agreement, this is only indica-tive and without engagement to NOVEMBER FIVE. NOVEMBER FIVE willmake best efforts to respect such delivery date.
If the Parties have explicitly agreed to binding delivery dates and the concerningdelivery date has not been respected by NOVEMBER FIVE, the client will beentitled to terminate the remaining part of the order or terminate the agree-ment, if the client has informed NOVEMBER FIVE of its intention to do so byregistered mail granting a reasonable correction period of 4 weeks.
This will not apply when the delay is caused by the client or a force majeureevent. Moreover, any fee remains due for Services/Deliverables received by theclient before termination in accordance with the provisions of this article.
Finally, such termination by the client cannot lead to the payment of anyindemnity by NOVEMBER FIVE, to the maximum extent permitted by law.
4.3 Where the client is requested to provide NOVEMBER FIVE with information,specifications, purchase orders and /or any invoice data required for the internalacceptance procedure of the client, or instructions for permitting the executionof the agreement, he will do this in a timely manner and with sufficient detail,accuracy and completeness as reasonably required by NOVEMBER FIVE.
If this information is not provided at the time of signing of the order or anSOW, NOVEMBER FIVE will be entitled to postpone the delivery of Servicesand/ or Deliverables until the required information is provided.
4.4 Except if agreed otherwise in writing, the risk for loss or damages will be trans-ferred to the client at the moment that the Deliverable(s) are sent electronicallyto the client. The client shall promptly inspect all Services and/or Deliverable(s) uponreceipt for non-conformities, defects and bugs. The client shall notifyNOVEMBER FIVE via the Ticketing system of any non-conformity, defector bug within ten (10) working days of receipt. If not, the Services and/orDeliverable(s) shall be deemed to be accepted by the client.
4.5 Without prejudice to its other rights and remedies, NOVEMBER FIVE mayterminate the agreement with immediate effect by written notice to the client byregistered mail, without prior notice, notice period and/or court authorization,if the client is in material breach of the agreement and either (i) that breach isincapable of remedy within a reasonable period, or (ii) the client has failed toremedy the breach within thirty (30) days after receiving written notice.
4.6 Without prejudice to its other rights and remedies, either party may terminatethe agreement with immediate effect by written notice to the other party byregistered mail, without prior notice, notice period and/or court authorization,upon the following events: (i) a court order is made for the winding up ofthe other party; (ii) an effective resolution is passed for the winding up of thecompany (other than for the purposes of amalgamation or reconstruction); (iii)the other party has a receiver, manager, administrative receiver or administratorappointed in respect of it; or (iv) the other party is unable to pay its debts as theyfall due or its assets are worth less than its liabilities on a balance sheet basis.
5.1 All prices are established in EURO or in the currency that is agreed upon in therelevant order or SOW.
Unless parties have agreed otherwise, Services and Deliverables will be providedby NOVEMBER FIVE at a flat-rate price agreed upon by the parties in therelevant order or SOW. All possible changes in the Deliverables and/ or addi-tional Services requested and agreed upon between the parties will be invoicedin accordance with the rates or prices as applicable at the time of such changerequest.
5.2 NOVEMBER FIVE is entitled to demand an advance payment or anothersecurity from the client. As long as NOVEMBER FIVE has not received this,NOVEMBER FIVE is entitled to suspend the execution of the agreement.
5.3 The VAT, other taxes and possible costs related to the Services and/or theDeliverables, provided by NOVEMBER FIVE, including all taxes and possiblecosts that have been implemented since the effective date of the order or SOW,are charged to the client.
5.4 NOVEMBER FIVE is entitled to increase the prices in existing agreementsonce a year commencing on 1 January, on the basis of the alteration of theconsumer price index.
The agreed price can also be adjusted to important increases inNOVEMBER FIVE’s cost (e.g. a price increase by its supplier or of a third partylicense) necessary for the execution of agreement, upon prior written notice byNOVEMBER FIVE at least 4 months in advance.
6.1 NOVEMBER FIVE will invoice the client in accordance with the paymentprovisions specified in the relevant SOW. If no other payment provisions areagreed upon in the SOW, invoices will be sent to the client on a monthly basis.
Invoices will be paid by the client to NOVEMBER FIVE within 30 days fromthe date of receipt of the invoice, only by means of a bank transfer in EURO /or in the currency as agreed upon in the relevant SOW on the account numbermentioned on the invoice.
6.2 Complaints related to an invoice are only acceptable in case of a detailed, writtennotification of the complaints referred to by the client to NOVEMBER FIVE within 10 business days after invoice date (without any acknowledgement on thecorrectness of such complaint by NOVEMBER FIVE). Otherwise, the invoiceis deemed to be accepted by the client without reservation. The part of theinvoice that is not contested, has to be paid in accordance with the provisionsof this article.
6.3 Insofar the invoice concerns Services which have already been finalized, pay-ment by the client of such invoice will entail the client’s approval of the invoicedServices, except in case of contrary notification delivered by registered mailwithin ten (10) business days of receipt of the invoice.
6.4 In case the invoice is not paid entirely on the expiration date, all other invoices(irrespective their expiration date) will be immediately and automatically due. Insuch case, interest will be automatically due at a rate of 1% per month as from theinvoice date. Any started month will count as a complete month. Moreover, theclient will have to pay automatically and without prior notification and withoutfurther formality a lump sum of 10% of the invoice price, VAT excluded, with aminimum of 250 EUR, without prejudice to the right of NOVEMBER FIVE toclaim an indemnity equal to its actual losses. NOVEMBER FIVE shall be enti-tled to suspend the execution of the agreement until receipt of all due amounts.
7. INTELLECTUAL PROPERTY
7.1 All Intellectual Property Rights (i) held by NOVEMBER FIVE on the effectivedate of an agreement with the client, or (ii) gained by NOVEMBER FIVEduring the agreement, shall remain the sole and exclusive property ofNOVEMBER FIVE, and the client shall have no right or license to use any suchIntellectual Property Rights for any purpose other than the operation of theDeliverable(s) as defined in the SOW.
7.2 An agreement between NOVEMBER FIVE and the client cannot affect, nor(directly or indirectly) result in a transfer of the Intellectual Property Rights onthe know-how, NOVEMBER FIVE software, tools and methodology or anyother Intellectual Property Rights of NOVEMBER FIVE used in the frame-work of the agreement.
The client expressly acknowledges that NOVEMBER FIVE can never bedenied the right to use for other projects and purposes any NOVEMBER FIVEsoftware, tools, methodology, experience or know-how.
7.3 To the extent that the Deliverable(s) contains elements that have been specifical-ly developed by NOVEMBER FIVE for the client, such elements will be definedin the relevant SOW and NOVEMBER FIVE grants to the client a perpetual,exclusive, transferable license to operate the Deliverable(s) and related docu-mentation provided by NOVEMBER FIVE within the scope and purpose asdefined in the relevant SOW.
8.1 NOVEMBER FIVE guarantees that the Deliverable(s) conforms in all materialrespects to the documentation in the relevant SOW and offers a commercialwarranty of 3 months from delivery for all inherent defects and bugs in theDeliverable(s), without prejudice to the limitations below. Any other warranty,whether express or implied, in relation to the Services and/or Deliverable(s) isexcluded, to the maximum extent legally permitted.
8.2 Limitation of Warranty The client acknowledges that this warranty shall not apply to any defects/dam-ages due to external causes, such as, without limitation: • natural disasters, including smoke, water, earthquakes or lightning; • electrical power fluctuations or failures; • the neglect or misuse of the Deliverable(s) or failure to comply with the instruc-tions set forth in the SOW; • a correction or modification of the Deliverable(s) not provided or approved inwriting by NOVEMBER FIVE; NOVEMBER FIVE provides no warranties of any kind in relation to: • the merchantability and/or fitness of any Deliverable(s) for a particular pur-pose (other than the one mentioned in the SOW); • the compatibility of any Deliverable(s) with the software and/or the hard-ware of the client and/or any third party (other than the ones mentioned inthe SOW); • the expectation of the client that the Deliverable(s) will satisfy or may becustomized to satisfy all or any of client’s specific requirements (other than theones mentioned in the SOW); • the uninterrupted or error-free use of the Deliverable(s) by the client, regard-less whether such warranty would otherwise be imposed by contract, statute,course of dealing, custom and usage, or otherwise.
The client acknowledges that this warranty is limited to defects that are foundto be due to NOVEMBER FIVE’s development or testing procedures andnot due to the client or third party developed applications or solutions for theDeliverable(s).
8.3 Execution of the Commercial Warranty The client shall notify NOVEMBER FIVE of any inherent defects or bugswithin ten (10) business days of detection of the defect or bug. Any notificationby the client will provide sufficient detail with regard to the alleged defect or bug.
In any case where the commercial warranty under this article can be applied,NOVEMBER FIVE will, at no cost, either repair or replace the Deliverable(s)(at NOVEMBER FIVE’s sole discretion) and make best efforts to respect thefollowing timetable:
- response time: 5 business days- resolve time: 10 business days
as from the notification of the alleged defect or bug. The timetable does notinclude possible delays caused by Third Party Changes.
During the repair/replacement services, the term of warranty is suspended,afterwards it continues for the remaining duration.
9. LIMITED LIABILITY
9.1 Each of the Parties to this Agreement will be liable for their own actions ornegligence.
9.2 NOVEMBER FIVE can only be held liable for damages caused directly bythe Services and/or Deliverables (as they were delivered to the client), due toNOVEMBER FIVE’s actions or negligence, excluding any liability for indirectdamages, fees, costs, losses of profit etc.
9.3 Any liability of NOVEMBER FIVE is excluded for Deliverables which havebeen modified after delivery by NOVEMBER FIVE to the client.
9.4 The liability of NOVEMBER FIVE is in any case limited to the amount whichwas invoiced by NOVEMBER FIVE in relation to the Services or Deliverable(s)in the relevant SOW.
10. ABSENCE OF EXCLUSIVITY
10.1 NOVEMBER FIVE, nor the client, are bound by any exclusivity obligation.
11. NON RECRUITMENT
11.1 The client shall refrain from employing and engaging the employees ofNOVEMBER FIVE, directly or indirectly, or to entice another party to engage,for the duration of the agreement, and following termination of the agreement,during a twelve (12) months period starting from the invoicing date of the lastSOW.
12.1 All information that has been shared between NOVEMBER FIVE and theclient in the framework of the agreement, will be considered as confidentialinformation, and both parties will hold such information strictly confidential,unless (i) the information has already been made public by one of the partiesprior to the effective date of the agreement or (ii) the concerning informationshould be considered as being part of the public domain.
12.2 The parties agree to hold all confidential information strictly confidential duringthe term of the agreement and for a period of 1 year after the end of the agree-ment, and will refrain from using, multiplying, making the information publicor allowing that it is used for other purposes than the ones it was originallyshared for.
13.1 Within the scope of an agreement or SOW, personal data (including name,country, area, e-mail, date of birth, ...) may be collected and stored byNOVEMBER FIVE on behalf of the client.
In such case, NOVEMBER FIVE and the client will ensure that the PersonalData will be processed in accordance with the applicable legislation concerningthe protection of personal data (including the European Directive 95/46/EGdated on the 24th of October 1995 and the Belgian Act of the 8th of December1992).
13.2 NOVEMBER FIVE will take all precautions — including administrative, tech-nical, and physical measures — to safeguard the personal data against loss, theft,and misuse, as well as against unauthorized access, disclosure, alteration, anddestruction.
14. FORCE MAJEURE
14.1 Neither party shall be liable for any delay or failure to perform hereunder ifsuch delay or failure is due to a force majeure event. A force majeure event is anycause beyond the reasonable control of such party that prevents that party fromperforming under the agreement, temporarily or permanently, even if the causewas foreseeable. Without being exhaustive, a force majeure event includes: stockshortages, third party delays, defective machines, strike, lockout, fire, uprising,war, epidemic, flood, electrical, IT, internet or telecommunications failures andgovernment related decisions.
14.2 The party that invokes a force majeur event is not obligated to prove the unfore-seeable nature thereof.
14.3 In case of a force majeur event, the performance of services hereunder of theconcerning party is suspended. Both parties will use best efforts to limit the con-sequences of the force majeure event. In the event either party is unable toresume performance of the applicable services within 2 months of providingnotice of a force majeure event, the other party may terminate the agreementimmediately, without compensation to the other party.
15. APPLICABLE LAW & JURISDICTION
15.1 The Belgian Law is applicable on all offers, SOW’s and agreements byNOVEMBER FIVE.
15.2 The Antwerp courts will be exclusively competent for any dispute related to theclosure, interpretation and execution of such offer, SOW and/ or agreement.Before starting legal proceedings before the competent court, parties willhowever try to find an amicable settlement.