Terms and conditions

1. Applicability

1.1. These general terms and conditions apply to all quotations, proposals and invoices drawn up by, and all agreements concluded by, JIMBER BV (hereinafter referred to as ‘Service Provider’), a company incorporated under Belgian law with its registered office at Patotterijstraat 76, 9250 Waasmunster, registered in the register of legal entities of Ghent, Dendermonde division, under number 0684.939.269, to the exclusion of the purchasing or other terms and conditions of the Customer, save with the written and express consent of the Service Provider.

1.2. The Customer shall read these general terms and conditions together with the full set of documents and descriptions of each specific assignment.

2. Offer and Agreement

2.1. Each quotation drawn up is valid only with respect to the person(s) to whom the quotation is addressed.

2.2. The quotation is valid for the period stated on the quotation itself or, failing this, for a period of 30 calendar days from the date of dispatch.

2.3. An Agreement between the Service Provider and the Customer is concluded as soon as the Customer accepts a quotation drawn up by signing it, whether digitally or otherwise, by any other confirmation by the Customer, or following the Customer’s request to commence the work. Acceptance by means of electronic communication or given orally is equally valid.

3. Delivery

3.1. Delivery takes place in accordance with the agreed time limit, but that time limit is approximate only and is stated purely for information purposes. The Service Provider reserves the right to postpone delivery for reasons of quality, but must inform the Customer thereof.

3.2. The Customer acknowledges that the Service Provider’s ability to fulfil its obligations with regard to the performance of the services depends on the timely cooperation of the Customer with the Service Provider, as well as on the accuracy and completeness of all information and data that the Customer provides to the Service Provider. The Customer shall grant the Service Provider access to, and allow it to make use of, all information, data and documentation that the Service Provider deems necessary to enable the Service Provider to fulfil its obligations under this agreement.

3.3. Late delivery by the Customer of texts and templates, changes, images, logos, house styles, login details and the like may extend the delivery period and increase the costs.

4. Acceptance

4.1. As soon as the services relating to software development are made available to the Customer for testing, they shall be deemed to have been provisionally delivered and accepted. If the Service Provider has not received written notice to the contrary within five (5) working days after the Service Provider has made the software available for testing, final acceptance of the services by the Customer shall be deemed to have taken place, which means that any additional changes will be invoiced separately by the Service Provider on a time-and-materials basis.

5. Term and termination

5.1. Unless otherwise stated, each agreement is valid for an initial period of one (1) year. Upon expiry of one year, this term is tacitly renewed for an indefinite period.

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

5.3. In the event of cancellation of the agreement, the Customer shall owe a fixed fee of 50% of the total fees in the event of cancellation within 14 calendar days after the conclusion of the agreement, and a fixed fee of 100% of the total fees in the event of cancellation later than 14 calendar days after the conclusion of the agreement. All costs already incurred for the purposes of the performance shall also be invoiced.

6. Hosting

6.1. The Customer shall not pay any fee for installation, updates, support and maintenance with regard to the system on which the service is hosted, if the service is hosted on the infrastructure of the Service Provider (or its subcontractors).

6.2. The Customer shall pay a fee of NINETY (90) EUR/hour for installation, updates, support and maintenance if the Customer provides the hosting itself or has it provided by a party of its own choosing, and the service is therefore not hosted on the 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 that the Service Provider may incur, such as travel time and travel expenses, unless expressly agreed otherwise in writing with the Customer.

6.4. The Service Provider reserves the right to amend the fees referred to in this article during the term, no more than once per year, but not earlier than one (1) year after the commencement of the Agreement. Such an amendment may be made only within the statutory limits and solely as a result of cost increases and/or changes in exchange rates and/or price-increasing measures taken by the Belgian government.

6.5. Each party has the right to terminate the hosting agreement at any time and for any reason whatsoever, subject to a written notice period of six (6) months.

6.6. Each party has the right to terminate the hosting agreement 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 this breach is not remedied within a period of 30 calendar days;

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

6.7. Each party has the right to terminate the hosting agreement with immediate effect merely by 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 bankruptcy petition is filed against it, or that it is manifestly insolvent;

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

6.7.3. if some or all of the assets of the other party have been subject to an executory or protective attachment, or if other executory or protective measures have been taken.

6.8. The Customer shall indemnify the Service Provider against all legal claims relating to 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, unlawful conduct and spamming on the part of the Customer shall be borne by the Customer.

6.9. The Service Provider reserves the right, in the event of non-performance by the Customer and after a warning, to disconnect the hosting. The Service Provider reserves the right to remove or disconnect hosting that jeopardises proper operation.

7. External service providers

7.1. For certain services, the Service Provider may call upon external service providers where necessary for the proper performance of the services. The Service Provider may appoint these external service providers at its own discretion.

7.2. At the Customer’s request, the Service Provider may take over the management of services or software supplied or developed by an external party. The Service Provider can never be held liable or responsible for any errors committed by such an 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 or responsible for any unavailability of, or errors caused directly or indirectly by, such external systems.

8. Liability

8.1. The Customer shall comply with the applicable statutory provisions and any contractual obligations, and shall indemnify the Service Provider against all direct and indirect damage and costs caused by any breaches committed by the Customer, as well as against claims by third parties. This indemnity shall continue to apply after the termination of the Agreement.

8.2. The Customer expressly acknowledges that the Service Provider can only be held liable for damage resulting directly from an intentional and attributable fault of the Service Provider.

8.3. The Service Provider is not liable for indirect damage suffered by the Customer, such as, but not limited to, loss of profit, financial or commercial losses, loss of production, increase in overheads, increased administrative costs, loss of or damage to data, loss of contracts, non-material damage and loss of clientele.

8.4. In any event, the liability of the Service Provider can never exceed the amount of the fee due to it (excluding the amounts invoiced to the Customer for the performance of the assignment 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 refuse the Customer access to the service, temporarily or permanently, in the event of misuse of the service by the Customer or third parties.

9.2. The Service Provider has the right to suspend access to the service if the Service Provider must carry out (emergency) maintenance on the service that cannot be carried out without suspending or restricting access.

10. Fees

10.1. The Customer shall pay the fees as stated in the quotation and/or as agreed by means of electronic communication and/or orally.

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

10.3. The Service Provider reserves the right to amend the fees during the term, no more than once per year and no earlier than one (1) year after the conclusion of the agreement. Such an amendment may be made only within the statutory limits and solely as a result of cost increases and/or changes in exchange rates 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 before the commencement of the services. The Service Provider may make the commencement of the services conditional upon receipt of payment of the advance invoice. The remaining balance shall be invoiced two weeks after provisional delivery, as described in article 4.1.

11.2. Invoices are payable within 14 days of the invoice date.

11.3. In the event of a dispute, the invoice must, on pain of forfeiture, be contested with reasons within 14 days of the invoice date.

11.4. Complaints concerning services must be submitted in writing no later than 14 days after the invoice date, stating the reason for the dispute. The liability of the Service Provider is limited to the (partial) refund of the price it has received for the non-conforming part of the service. The Service Provider disclaims all further responsibility, including for any damage caused to persons or property by goods supplied or sold.

11.5. Upon expiry of the payment term, the Service Provider shall send a formal notice of default for payment and shall grant the Customer an additional reasonable period in which to pay the invoice. If the Customer does not pay the invoice within the additional period, the price shall be increased, by operation of law and without any notice of default being required, by a fixed compensation of 10% of the invoice amount, with a minimum of EUR 150.00, corresponding to the inconvenience thus suffered by the Service Provider and the administrative costs incurred in this regard, to the exclusion of legal costs and the costs and fees of the counsel appointed by the Service Provider. In addition, late-payment interest shall be due by operation of law and without any notice of default being required, calculated in accordance with the Law of 2 August 2002 on combating late payment in commercial transactions.

11.6. If the Service Provider calls upon external service providers (Google, Facebook, …) for the performance of the assignment, the costs charged by these external service providers shall always be invoiced to the Customer in full, with a minimum margin of 2.5%. The Service Provider reserves the right to request a (periodic) advance on these costs or to invoice them in advance, in whole or in part.

11.7. If payment of an invoice is more than 60 days overdue, the Service Provider is entitled to terminate the Agreement or the entire collaboration with immediate effect without paying any compensation.

12. Non-exclusivity

12.1. The Service Provider reserves the right to provide services to competitors of the Customer, unless otherwise stipulated in writing.

13. Non-solicitation clause

13.1. Without the consent of the Service Provider, the Customer is not entitled, during the term of the agreement and for twelve (12) months after its termination or expiry, to employ, contract or otherwise collaborate with employees of the Service Provider.

13.2. If the Customer, in breach of the foregoing, employs, contracts or otherwise collaborates with such an employee, the Customer acting in breach of the foregoing shall pay the Service Provider fixed damages of EUR 50,000.00. This amount shall be due and payable on the date on which the person is employed or contracted by, or otherwise collaborates with, the Customer.

14. Force majeure

14.1. The Service Provider is not liable for (consequential) damage caused by force majeure. This includes the unavailability of the server as a result of events not attributable to the Service Provider, such as power cuts or power failures.

15. Intellectual property rights and indemnification

15.1. All intellectual property rights in respect of the service shall remain vested in 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, whether or not for commercial purposes, for any purpose other than its internal business purposes. The Service Provider shall defend the Customer against, hold it harmless from and indemnify it for all damage, losses, expenses and costs arising from a claim brought by a third party on the grounds that the service infringes the intellectual property rights of that third party. The Customer shall immediately notify the Service Provider of any claim it receives. At the request and expense of the Service Provider, the Customer shall provide the Service Provider with its reasonable cooperation in defending against the claim.

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

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

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

15.2.3. refund to the Customer all fees paid in respect of the service.

15.3. All intellectual property rights relating to the materials (i.e. the data, input and information uploaded to the service by the Customer or its authorised users) shall remain vested exclusively in the Customer. The Service Provider receives only a limited licence to use and store the materials for the hosting, delivery, support and maintenance of the service and solely for the term of the Agreement.

16. Warranty

16.1. The Service Provider shall fulfil its obligations with regard to the performance of the services with reasonable care and skill and in accordance with good industry practice.

16.2. Unless expressly provided otherwise in this article, all other conditions, warranties, undertakings and representations of any kind whatsoever, express or implied, whether by statute, common law or otherwise, relating to the services are hereby excluded by the Service Provider to the extent permitted by law, and the Service Provider shall have no other obligation, duty or liability towards the Customer, whether in contract, tort, under statute or otherwise.

17. Confidentiality

17.1. Each party shall keep confidential all information it receives concerning 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 be used solely for the performance of the Agreement and may be shared only with employees within a party’s organisation who need to be aware of 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 confidential information of the other party, which shall in any event be no less stringent than the measures they take for their 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 before it enters into the Agreement;

17.3.3. information that has entered the public domain through no act or omission of a party;

17.3.4. information that has been developed independently without breaching the Agreement.

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

17.5. Following the termination of the Agreement, the confidentiality obligation shall remain in force for a further two years.

18. Data protection

18.1. Each party must at all times comply with its respective obligations under all Applicable Data Protection Legislation with regard to all personal data processed in the context of the Agreement. Insofar as the Service Provider, in its capacity as processor, processes personal data on behalf of the Customer, the Customer, in its capacity as controller, shall remain responsible for determining the purpose and means of the processing, and the Service Provider shall follow all instructions reasonably given 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 concerning the conclusion, performance, termination and/or interpretation of the agreement, the parties undertake to enter into discussions in good faith with a view to reaching an amicable settlement of the dispute.

19.3. If 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 authorised representatives of both parties. The customer acknowledges that such amendments may affect the price and the timeframe.

20.2. The Customer may not transfer any rights or obligations under this Agreement without the prior written consent of the Service Provider. The Service Provider may transfer this Agreement to an affiliated company, parent company or subsidiary without the prior consent of the Customer.

20.3. If a provision or part of a provision of these general terms and conditions becomes void, unlawful, 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 remedy the nullity, unlawfulness, invalidity or unenforceability of the provision in question by replacing it with a lawful, 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 that it has taken note of and agrees to these general terms and conditions. The tacit acceptance of a single invoice also constitutes acceptance of the general terms and conditions.