M4KE.IT SPRL - General conditions of service
1. General Terms and Conditions
1.1 The general terms and conditions of sale are applicable to all orders for services that are placed with M4KE.IT SPRL, whose head office is located at Rue Labie 13 in 5310 Leuze, registered with the ECB under number 0549901017, hereinafter referred to as the Service Provider.
1.2 The Customer is the one who has placed the order, the Service Provider is the one who has agreed to execute the order.
2. General information
2.1 Unless otherwise agreed, all offers, interventions and performances of the Service Provider are subject to these terms and conditions. These terms and conditions are deemed accepted by the Customer upon placing the order, without any restriction or reservation. The Customer hereby waives the right to rely on any conflicting document, including its own general and/or special terms and conditions, even if the latter provide that they apply exclusively.
2.2 The provisions not expressly derogated from shall continue to apply. The application of these general terms and conditions can only be changed by written agreement, such as special terms and conditions.
3. Offers and quotes
3.1 The Service Provider's offers are made without any obligation on its part. They shall only be binding on the Service Provider if they have been expressly accepted by the Customer and if the Service Provider has confirmed the Customer's order in writing by mail or electronically.
3.2 Unless otherwise agreed in writing, the validity period of our offers is 60 days from the date of issue. After this period, the Customer shall request a new offer from the Service Provider.
3.3 When an offer or a quotation is drawn up by the Service Provider, the special conditions of these documents modify or complete the present general conditions.
4.1 Any order entrusted to us is only binding on us after written confirmation from us.
4.2 Changes made by the Customer to his order form or to our offer shall only be valid if we have accepted and confirmed them in writing.
4.3 In the absence of any contractual document, it is expressly agreed between the Customer and the Service Provider that the emails exchanged between the parties can be used to establish a commercial relationship and thus constitute regular proof of the existence of an order and its acceptance.
4.4 If, at the Customer's request, the order is cancelled, invoicing will be made at the current stage of the order's execution. The amount invoiced shall include the costs incurred by the Service Provider plus a conventional compensation amounting to 15%. In all cases, a minimum amount of EUR 500.00 shall be claimed.
4.5 In case of interruption of a given job, due to the delay of the Customer in following up the parts presented to him, the job, in the state of execution in which it is, will be invoiced to him as provided above after a period of one month.
4.6 If, at the request of the Customer, the execution of the work is temporarily suspended, or if the Customer delays in following up on the documents presented, a provisional invoice may be issued at the current stage of the execution of the order (service, wages, raw materials, subcontracting, etc.). After a period of 3 months without returns, the service is considered closed, an invoice is then established at the stage of the execution of the order
4.7 Any modification of the order during its execution, as well as any change in the use or distribution of the creations or materials delivered, may result in a revision of the price initially agreed upon, without prejudice to the Provider's right to object to modifications that infringe its intellectual property rights.
4.8 Changes made verbally or in writing, in particular by telephone or e-mail, shall be carried out at the risk of the client.
4.9 Each person or company who places an order and asks to invoice a third party, becomes jointly and severally responsible for its payment.
5. Services and order fulfillment
5.1 All work will be scheduled upon receipt by the Service Provider:
- The express acceptance of the Quotation or Offer prepared by the Service Provider at the Customer's request and the payment of the deposit (if any) required by the Service Provider in accordance with Article 4.4. above.
- The service begins upon receipt of the deposit (if any) and written confirmation from the Customer of acceptance of the offer.
5.2 The Service Provider reserves the right to refuse any services and work that are manifestly contrary to good morals, racist and/or illegal in nature.
5.3 The services ordered by the Customer from the Service Provider are under the Customer's responsibility. If the Customer should cancel the project for any reason not attributable to the Service Provider's fault, the Customer shall be entitled to withdraw from the contract only upon payment of the cancellation fee provided in Article 4.5 above.
5.4 In case of creation of a website, the implementation can be done by the Service Provider who uses a subcontractor for hosting. The hosting, maintenance and modification costs are at the Customer's charge. The Service Provider can not be held responsible for any malfunction or technical problems related to the hosting service offered to the Customer or chosen by the Customer.
- Likewise, the Service Provider cannot be held responsible for the prejudicial consequences and damages which would result from :
- any modification and/or addition to the content of the site by third parties and/or the Customer, including by hackers;
- any use that third parties may make of the information and data made available on the website;
- the use of hyperlinks that would prejudice the rights of third parties. The Service Provider shall not be liable for any consequential damages caused to the Customer, such as loss of profit. The Service Provider's liability is in any event limited to the amount of the contract (excluding hosting), which is the amount that would have been paid by the Customer if the Service Provider had performed the service to the satisfaction of the Customer.
6.1 The deadlines set for our services or deliveries are, unless otherwise agreed, only indicative.
6.2 The Customer may not invoke the time limits for performance to seek rescission of the Contract, claim damages or assert any other claim, unless otherwise expressly agreed to in writing by the Provider.
6.3 If a deadline is imperative, it must be clearly specified as such on the purchase order.
6.4 Even in this case, the following circumstances release us from our deadlines :
- Case of force majeure (including, but not limited to, strikes, technical incidents, supplier delays and labor shortages).
- Non-compliance with payment terms.
- Changes decided by the client during the work.
7.1 The delivery is considered perfect on the day of the first presentation of the files to the Customer.
7.2 The delivery times are given only as an indication and start to run on the working day of the handing-over to the Service Provider of all the elements necessary for the realization of the order. The deadlines for the Service Provider are automatically extended by any event beyond its control that makes it impossible or difficult for the Service Provider to perform its services for as long as such event lasts, including technical or computer problems. Such delays do not entitle the Customer to cancel the order or to claim any compensation from the Service Provider.
7.3 If, at the request of the Customer, the execution of the order incurs additional costs due to a shorter than agreed or normal delivery time, these will be charged.
8. Intellectual property rights
8.1 All software results produced by the Service Provider are the property of the Customer insofar as they are results inherent to the Customer's request as described in the details of the services.
8.2 The Customer acknowledges that the Service Provider retains full ownership of its ideas and know-how, of whatever nature, relating to the services provided by the Service Provider and the results thereof.
8.3 The Service Provider retains full ownership of the products and results of the services sold, until full payment of the price and its accessories (any costs, interest and penalties). Consequently, the buyer is expressly prohibited from selling, transferring, pledging or generally disposing of the products sold or the results of the services covered by the contract before the account has been settled.
8.4 The Service Provider shall be entitled to invoke this retention of title clause eight days after sending a formal notice to pay, by registered letter with return receipt requested, to the purchaser and remaining without effect. The products and other fruits of the services shall then be returned to the Service Provider immediately and upon request.
8.5 The buyer will nevertheless remain solely responsible for the loss or destruction, even by fortuitous event or force majeure, of the products sold or the fruit of the services.
8.6 Unless otherwise agreed, the Customer authorizes the Service Provider to publish on its website or on other promotional media (showreel, blogs, forums dedicated to design) all or part of the creations delivered to the latter, and to reproduce its brand or other distinctive signs appearing in the creations, and this, for the sole purpose of referencing (portfolio)
9.1 The Service Provider's prices are those in effect on the date the Quotation is sent to the Customer. Unless otherwise specified, the Service Provider's prices are expressed in euros and are exclusive of VAT. If the Services are provided in the form of electronic files, the price charged shall include the cost of transmission over the network. If the Customer chooses to use other delivery methods, the additional costs for these shall be charged to the Customer.
9.2 The fees related to the hosting or maintenance services that would be assumed at the request of the Customer by the Service Provider, whether directly or indirectly, are payable in advance.
9.3 Our prices are in principle not revisable, but we can however pass on these the modifications of the rate of the VAT which would intervene before the delivery date.
9.4 The Service Provider reserves the right to charge the Customer for travel expenses for meetings (with the Customer, subcontractors, etc.) outside its headquarters at 0.33 euros per kilometer.
10.1 Invoices are payable, in the currency of the invoice, within 7 working days. Payment shall be made by bank transfer to the Provider's account mentioned on the invoice.
10.2 Any delay in payment of more than 15 days shall automatically and without notice of default generate conventional interest of 12% per annum, with a minimum rate in accordance with that provided for in Article 5 of the Act of 2 August 2002 on late payment in commercial transactions. Any unpaid invoice on the due date will, in addition, be increased, by right and without formal notice, by a fixed and irreducible compensation of 15% of the amount remaining unpaid with a minimum of 125,-€ per invoice.
10.3 In case of default or delay in payment, the Service Provider reserves the right to suspend any delivery or service to the Customer, whether or not related to the unpaid order(s), until full repayment of all outstanding amounts, including compensation and interest.
Similarly, the Service Provider reserves the right, without any prior notice, in case of non-payment within 15 days of the due date of the invoice, to remove access and/or stop the distribution of any creations made by the Service Provider for the benefit of the Customer, and/or to suspend the execution of current contracts, whether or not related to the unpaid order(s), until full repayment of the amounts due, including compensation and interest for late payment, without any recourse by the Customer.
10.4 All invoices are deemed to be accepted unless the Customer notifies the Service Provider by registered mail within 8 days of receipt of the invoice. After this period, any claims by the Customer shall not be taken into consideration by the Service Provider.
11.1 Any complaint relating to the creations or the delivered material must be notified to the Service Provider in writing and duly motivated by the Customer. No complaint is admissible if it has not been addressed to the Service Provider within 5 days of the delivery of the ordered material to the Customer.
11.2 In any case, any omissions, errors or design flaws that may have escaped the Customer's attention at the time of submission of the various proofs and/or at the time of final approval of the project shall not be attributed to the Service Provider, who shall make any necessary corrections at the Customer's expense.
12. Harmful content - Third party rights
12.1 All information contained in the designs produced by the Service Provider is the sole responsibility of the Customer. The Service Provider shall not be liable for any linguistic, calculation or design errors not indicated.
12.2 In case of a complaint from a third party, the Service Provider reserves the right to purely and simply remove access and/or stop the distribution of any content likely to infringe the rights of the complainant, without recourse from the Customer.
12.3 The Customer warrants to the Service Provider that the materials provided to the Service Provider for the performance of its orders may be freely used, without restriction, for the purposes of such orders, and releases the Service Provider from any liability in this regard. In particular, the Customer shall indemnify the Service Provider against any claim by a third party asserting rights to the said items. The Customer shall also indemnify the Service Provider against any damages.
13.1 Unless otherwise expressly agreed, the Service Provider is only bound by an obligation of means: the Service Provider therefore assumes no liability for delays, defects or other failures resulting from an unrelated cause or from events, even foreseeable, beyond its own control (examples, without this list being exhaustive: electrical breakdowns, failure of the telecommunications network, illness, service incident, or failure of one of the subcontractors or another Service Provider, etc.).
Except in the case of fraud or gross negligence on the part of the Service Provider, the Service Provider shall in no event be liable for any direct damages suffered by the Customer, such as loss of profits, reduction in turnover or any other increase in overheads, or the loss or damage of originals or data. The Customer agrees to keep all originals of all resources made available to the Service Provider.
Furthermore, the Service Provider shall not be liable in any way for defects caused directly or indirectly by the fault or negligence of the Customer himself or of a person acting on his behalf and/or in his name or of a third party.
In the case of force majeure and, more generally, in all circumstances which prevent, reduce or delay the performance of the work by the Service Provider, or which cause an excessive worsening of the commitments made by the latter, the Service Provider shall be relieved of all responsibility, and may reduce the commitments, terminate the agreement or cancel the performance thereof without being required to pay any compensation.
Such circumstances include, but are not limited to: war, civil war, mobilization, unrest, strike, lockout, both on the part of the Service Provider and its co-deliverers, machine breakdown, computer bugs or viruses, fire, water damage, as well as restrictions or prohibitions imposed by the authorities.
13.2 The Service Provider is in no way responsible for any problems or disputes arising after the delivery of the ordered equipment.
13.3 The Service Provider shall only be liable for work, studies, creations or projects that it has carried out itself.
13.4 In the event that the Service Provider cannot rely on one of the causes of exemption stipulated in these general terms and conditions, the Service Provider's liability shall in any event be limited to the amounts invoiced to the Customer, with a maximum of €1,000 per claim.
The Service Provider undertakes not to disclose any confidential information provided by the Customer, except in the event of a dispute at the express request of a judge or at the request of an administrative authority under the applicable legislation. The Service Provider also undertakes to ensure that its subcontractors, if any, comply with this confidentiality clause.
Failure to pay by the due date, notice of seizure, application for judicial reorganization, deferment of payment, even if unofficial, initiation of bankruptcy proceedings or any other fact indicating the insolvency of the Customer, shall result in the forfeiture of any term of payment that may have been granted, shall render all invoices not yet due immediately payable, for any work whatsoever, and shall entitle the Service Provide
16. Applicable law - Litigation
Any dispute relating to the conclusion, validity, interpretation or execution of this contract and the contracts arising from it shall be governed by Belgian law and shall fall exclusively within the jurisdiction of the courts of the judicial district of Namur. The language used is French.