General Terms and Conditions
These are the General Terms and Conditions of BV DWY, hereinafter referred to as “DWY”, with registered offices at 2800 Mechelen, Begijnenstraat 11 bus 402, and with VAT-number BE0652.798.617.
ARTICLE 1 • FIELD OF APPLICATION
These General Terms and Conditions apply to every offer from DWY as well as to every agreement concerning the delivery of goods and services from DWY. These General Terms and Conditions prevail above the general terms of the client, unless agreed upon in writing by the parties.
In addition to these General Terms and Conditions, additional special conditions may apply to the offer or agreement. In case of contradictory clauses between the General Terms and Conditions and the special terms, the clauses from the special terms will prevail.
If any provision of these General Terms and Conditions should be unlawful, void or for any other reason unenforceable, that provision shall be deemed to be separate from these General Terms and Conditions and shall not affect the validity and enforceability of the remaining provisions. The provision shall be replaced by a valid and enforceable provision that is in line with the intention of parties.
ARTICLE 2 • OFFERS AND PRICES
All estimates and offers of DWY are non-binding and will lapse if not accepted within a period of 10 working days. A more detailed agreement may be agreed upon by the parties. In this case parties will also agree on the applicability of the General Terms and Conditions and, if applicable, special terms and conditions. The agreement replaces all previous oral or written agreements between the parties.
All prices mentioned in the estimate or offer from DWY are, unless otherwise stipulated, excluded from VAT and all other taxes enacted by the authorities.
In case of excess work which exceeds 10% of the price agreed upon, DWY will inform the client. To the extent possible, excess work and its payment will be agreed upon by the parties in writing.
ARTICLE 3 • OBLIGATIONS OF THE PARTIES
It is understood and agreed explicitly that the obligations of DWY are obligations of means. DWY shall exercise all reasonable skill, care and diligence in the performance of the services under these General Terms and Conditions and carry out diligently and timely all the responsibilities according to good industrial standards in accordance with what is set forth in the offer and/or agreement. Unless otherwise agreed upon, the timing of the requested services, performance marks of the products or price can change during the fulfillment of the assignment (ex. in case of insufficient input from the client).
The client will cooperate to the fulfillment of the assignment in a cooperative manner. The client is and stays responsible for the delivery of all materials, necessary for the fulfillment of the assignment and protected by intellectual property rights. In any case, the agreed delivery times are extended to the extent that the client has failed to deliver or has lost time when submitting preparatory documents or during preparatory work of any kind. Additional orders can also give rise to an extension of the delivery times.
If the client entrusts goods to DWY during the execution of the agreement, the goods are preserved at the sole risk of the client.
The client explicitly agrees that DWY is allowed to call upon subcontractors in order to perform (parts of) the agreement.
ARTICLE 4 • OBLIGATIONS OF THE PARTIES
The client agrees upon the advance payment of 25% of the price agreed between parties. The advance payment can in no circumstances be recovered by the client, not even in case of cancellation. 50% of the price will be due at the time of provisional acceptance (in the test environment).
Unless otherwise agreed upon by the parties, the invoices of DWY are payable within 30 days after the invoice date at the registered offices of DWY. In order to be valid, all protests of invoices must be submitted by registered letter within 5 working days after the invoice date. If the client complains in a timely fashion, this does not suspend his obligation to pay. In that case, the client remains obliged to purchase and pay the other goods/services ordered.
In case of non-payment on the due date, the invoice price will automatically and without formal notice be increased by an interest conventionally set at 1% per month since the expiry date whereby each started month will be charged as a full month, as well as an indemnity of 10% of the value of the invoice with a minimum of 250,00 EUR, in addition to any administrative collection and protest costs and the above mentioned interests. Any delay in payments shall automatically and immediately make due any unpaid amounts.
In case the client cancels the assignment after the execution has started, DWY has the right to collect payment for already made costs.
The billing will take place depending on the agreed delivery dates of the project phases. The services and/or products will be considered as provisionally accepted by the client when they are put in service by the client or placed in the test environment.
In case the agreement defines a certain media budget (e.g. TV or radio time, Google AdWords,...) which can be spent on behalf of the client during a certain period of time, this budget will be invoiced and paid in advance and will only be used after receival of the payment for the following period.
ARTICLE 5 • WEBSITES
In case the agreement consists of the development of a website and/or digital platform, DWY provides for a transparent transition, installation and test delivery which is considered as provisional acceptance by the client.
After test delivery, a warranty period of six (6) weeks is given for processing technical bugs. The provisional acceptance becomes final after six (6) weeks, without any written notification being made by DWY.
The delivery of a website and/or digital platform can only take place after payment of at least 90% of the invoices. The lack of delivery of a website and/or digital platform has no impact on the client's payment obligations and therefore does not give rise to a suspension thereof. As soon as a project is paused for six (6) weeks due to the client, a restart fee of at least 8 weeks of planned work has to be paid by the client.
In case of the development of a website based on continuous development with sprint planning during a certain period of time, the warranty period of six (6) weeks will commence after delivery of each sprint and will only cover the work delivered in that sprint.
DWY cooperates with specialised hosting partners for all its website hosting activities. The client accepts and acknowledges that the liability of DWY is always limited to the liability the hosting partner accepts for the services it provides.
The hosting services agreement has a minimum duration of one year. Without a written cancellation at least 1 month before the end of the current year, it will be automatically extended for a following year. This agreement is billed annually. The price list can be requested to DWY and is adjusted annually. In the event of late cancellation the client is obliged to pay the compensation for the following calendar year.
DWY will charge the used volume above the limit if data traffic or storage limits are exceeded as included in the agreement. In that case, the Client has the choice to switch to a larger package or to bring the existing package back within the set limits.
In case the client orders a domain name through DWY, the rights attached to this domain name will belong exclusively to the client at the moment of full payment of the invoices of DWY. DWY is not responsible for managing the domain name. The agreement concerning the domain name is of indefinite duration and can be cancelled by registered letter no later than one month before the anniversary of the domain name registration.
DWY reserves the right to make changes and improvements to internet services provided to the client at its own discretion (e.g. web server updates, applications, content management & mailing system, ...). DWY will not be liable for any damage or costs incurred by the client as a result of the aforementioned measures.
ARTICLE 6 • SUPPORT AGREEMENT
After the warranty period of six (6) weeks resulting in the final acceptance by the client, a maintenance and/or service contract can be concluded between the client and DWY, whereby DWY provides a certain number of hours in order to provide changes and support at a fixed rate to be paid upfront and subject to the provisions of the contract and these General Terms and Conditions.
ARTICLE 7 • OTHER OBLIGATIONS AND WARRANTIES
DWY and the client commit themselves mutually to confidentiality concerning any sensitive information that is expressly qualified as confidential by (one of) the parties.
DWY shall not be liable for failure or delay on its part in performance of any of its obligations or for any loss, charge or damage suffered by the client if such fact shall be the result of or arising out of circumstances of force majeure character. DWY cannot be held liable for the consequences of a minor and/or ordinary error on her part, but will only be liable in the event of serious misconduct and/or intent.
DWY is not responsible for any direct or indirect damage caused except for the responsibilities she acknowledges in these General Terms and Conditions. DWY is not responsible for any shortage coming from normal wear and tear, inappropriate terms of use or inappropriate storage. At all times, DWY’s responsibility will be limited to the value of the project. The client will hold DWY harmless from any claim form third parties, even after the termination of the agreement.
The client will refrain from using the services or having them used for unlawful acts, committing criminal offenses and/ or for acts damaging the image and reputation of DWY. The client is responsible and liable for any use of the services provided, including the confidentiality and use of its access codes, e-mail addresses, etc. When activities contrary to the provisions of this article are established, the account in question will be closed immediately and/or DWY can take one or more of the following actions depending on the nature of the violation: (i) temporarily stop providing services to the client concerned; (ii) terminate the agreement between parties; (iii) charge additional costs and fines for the damages incurred by DWY; (iv) remove the content in question; (v) take all necessary steps to end the abuse. The client will indemnify and hold DWY harmless when activities contrary to the provisions of this article are established.
ARTICLE 8 • TERMINATION OF THE AGREEMENT
DWY shall be entitled to suspend the performance of the agreement in the event of non-payment of invoices up until the payment of the due amounts by the client. In such case, DWY does not accept any responsibility for any direct or indirect damage. In case the client refrains from payment, DWY can without prior written notice and without prior court intervention terminate the agreement by registered mail to the client. In this case the client cannot claim any indemnity.
DWY may also terminate the agreement:
(i) in the event of bankruptcy or judicial reorganization of the client, in the event of dissolution or liquidation of the client, or in the case of a provisional administrator has been designated for all or part of its activity or assets, or an administrative order has been issued in this sense, or in any other situation in which the client is unable to fulfil its obligations, as well as;
(ii) in the event of contractual breach by the client which is not remedied within 10 days after a notice of default has been sent.
ARTICLE 9 • INTELLECTUAL PROPERTY
DWY’s intellectual property rights to its ideas, concepts, developments, publications and any other work belong exclusively to DWY. The client shall immediately inform DWY of any infringement by third parties of DWY’s intellectual property rights.
The client grants DWY a non-exclusive, non-transferable license for the duration of the agreement on the materials made available by the client (texts, photos, data, etc.) in order to execute the assignment as stated in the agreement.
After payment of all related invoices, DWY transfers the intellectual property on all logo’s, branding and graphic design developed by DWY or its subcontractors in the course of the execution of the agreement to the client. This transfer applies to all countries, for the entire duration of the protection of the intellectual property rights and without any additional fees being payable by the client, except for the fees as defined in the agreement. However, the client grants DWY a non-exclusive, non-transferable license on all intellectual property rights regarding the works of DWY to integrate those works in the portfolio of DWY. The client agrees with the use of those works for the mentioned purpose.
After payment of all related invoices, the client will receive a perpetual, non-exclusive and nontransferable license to the functionalities and structure of the website and/or digital platform for the use of the work worldwide for the assignment as agreed between parties. The client is not allowed to grant sublicenses to third parties, or to make the functionalities and/or structure available to third parties in any way, or to commercialise them.
The intellectual property rights related to a CMS (content management system) or web application (i.e. software required for online data management) belong exclusively to DWY or a third party with whom DWY has concluded an agreement in this regard. The client obtains a non-exclusive, non-transferable user license for this software, after payment of an annual license fee determined in DWY’s offer. The client is prohibited from granting sublicenses to third parties, or making the software available to third parties in any way, communicating, using it for third parties or commercialising it.
If the website and/or digital platform contains (stock) photos, drawings, fonts and other graphic material not supplied by the client, but collected by DWY from a website that makes these materials available on the basis of a license-fee or for free, this purchase is done in consultation with the client and is charged to him. DWY provides the same guarantees to these materials as DWY receives from these providers. The terms and conditions of these providers are available upon request. After payment of all related invoices, the client receives a non- transferable and exclusive license to use all advertising material created by DWY and/or its subcontractors in the course of an advertising campaign as defined in the agreement and for a certain duration, territory and purpose as defined in the agreement. Any extension of or adaptation to the duration, territory and/or purpose of the advertising campaign is subject to separate negotiations with DWY.
ARTICLE 10 • NON-SOLICITATION
The client will refrain from hiring employees from DWY within 24 months after the termination of the contract with the employee. Any violation of this clause gives rise to the payment of a penalty fee by the client equal to the amount of the gross annual income of the employee.
ARTICLE 11 • RETENTION OF TITLE
All products delivered to the client shall remain property of DWY until all amounts and claims due from the client to DWY have been paid in full. This includes both the purchase price of the products and other amounts payable by the client on the basis of these General Terms and Conditions, such as - but not limited to - costs of delivery and amounts resulting from failure to pay the price (on time).
As long as ownership of the products has not passed to the client, the client is not entitled to pawn the products or to grant third parties any rights to the products. DWY is entitled (while retaining all its other rights) to retake/retrieve the products as long as the client has not paid (in full) the amounts described in the previous paragraph to DWY.
ARTICLE 12 • APPLICABLE LAW AND FORUM SELECTION CLAUSE
These General Terms and Conditions are governed, interpreted and executed according to Belgian law, which is the only applicable law in case of litigation.
Any disputes between the parties, including the disputes regarding the application and the interpretation of these General Terms and Conditions, fall under the exclusive jurisdiction of the courts of the location of the registered offices of DWY.