1. Definitions. SELLSPAD S.A. is a company incorporated under Belgian law, whose headquarters are located at Rue des Palais 44 Boîte 10, 1030 Brussels (Belgium) (BCE-VAT BE 0534.385.272 (RPM Brussels) operating also under the commercial name “SELLSPAD”. The Customer is the physical person or legal entity that, in conducting his business, has ordered goods or services from SELLSPAD. SELLSPAD is a product developed by SELLSPAD composed of 1) the setup of the software by SELLSPAD based on the information provided by the Customer and 2) the provision of a program to manage, organize and coordinate the documents and files related to the Customer’s business (« Ordering-Information-Reporting ») (hereinafter called « SELLSPAD software ») and the related services, including the hosting of uploaded data on the server or part of the server dedicated to the Customer. The Customer may also request to use its own server.
  2. Scope. These General Terms and Conditions constitute the entire contract between the parties excluding the Customer’s own terms and conditions. No deviations from these General Terms and Conditions shall be valid except with the prior written authorization of SELLSPAD. Any failure to implement a provision contained in these General Terms and Conditions shall not be construed as a waiver by SELLSPAD to invoke it or a recognition of any right for Customer.
  3. Offers. Any made offer, where appropriate, by SELLSPAD shall be exclusive of sales tax (VAT) and any other levies imposed by the authorities and applies strictly and solely to the services and deliverables contained therein, excluding all extraordinary costs and expenses (travel and accommodation outside the Brussels-Capital Region, etc.). Any offer has a validity period of 15 calendar days from the date of its issue. If Customer does not refuse expressly in writing during the validity period of the offer, the Customer is considered to have fully accepted the offer.
  4. Terms of cancellation. The Customer may validly cancel the order for so far that 1) the cancellation is done by registered letter with recorded delivery within 15 days after the express or tacit acceptation of the offer, 2) SELLSPAD has not begun to perform its obligations and 3) the Customer pays a cancellation fee equal to 30% of the total cost due for the initial duration of the contract exclusive of sales tax (VAT). Any deposit paid will be deducted from the cancellation fee. After this period of 15 days or if SELLSPAD has already started to perform the contract, it will no longer be possible for the Customer to withdraw from it. For so far it is necessary Article 1794 of the Civil Code is made inapplicable with the consent of the parties.
  5. Duration. Without prejudice to Article 4, the contract is concluded for a fixed and irrevocable term of 12 months and shall be extended for the same period under the same conditions if the Customer does not notify SELLSPAD at least 2 months before the anniversary date by registered letter with recorded delivery its intention to terminate the contract. SELLSPAD may, at any time after the first anniversary date of the contract, terminate it by giving one month’s notice to the Customer by registered letter with recorded delivery. Upon termination of the contract, regardless of the reason, the Customer is solely responsible for the recovery of data and information and will take the necessary measures to prevent that the termination of the contract generates, for the customer or SELLSPAD, damaging consequences. Customer agrees to stop, directly or indirectly, to use the services made available by SELLSPAD and commit to return them without any delay.
  6. Deadlines. All terms of delivery or performance are only estimates and are in no way binding for SELLSPAD. Any delay in delivery or performance shall under no circumstances give a right to any compensation, damages and interests or termination of the contract or suspension of the Customer’s obligations.
  7. Invoicing. The set up costs, additional options selected by the Customer as well as the costs of products and services including the licence of SELLSPAD software for the duration according to Article 5 are fully due and immediately invoiced as soon as the contract has been expressly or tacitly accepted. When the contract is expressly or tacitly extended all costs arising from this renewal will be fully due and invoiced at the beginning of the new period.
  8. Payment. Invoices are payable cash, unless otherwise expressly agreed via the bank account mentioned on the invoice. Any due invoice not paid on his expiry date will automatically bear a yearly interest of 15% until the date of payment increased by a contractual penalty clause of 15% with a minimum of € 125.00 without prejudice of the application of the law of 2 August 2002 relating to commercial transactions. The receipt of the invoice constitute automatically and in accordance with Article 1139 of the Civil Code formal notice without the need for a separate act and by the due term of the invoice. Any invoice must be immediately protested and no later than 15 days after its issuance date by registered letter with recorded delivery describing precisely the complains substantiated with evidence. If the Customer does not, within that period, protest or does not respect the specifically agreed forms, the invoice and therein mentioned product and services are considered to have been accepted without any reserve by the Customer.
  9. Exception of non-performance. In case of non-payment of an invoice for any reason whatsoever, SELLSPAD may oppose with prior notice to the Customer the exception of non-performance. Consequently SELLSPAD is authorized to suspend, temporarily or permanently, access to its services without that the Customer can claim any compensation. When appropriate the services will be reactivated upon receipt of the proof of payment in full of the invoice in principal, fees and interests.
  10. Confidentiality of access. Some services and features offered by SELLSPAD require the opening of an account (including the setting up of a username and a password). Customer has the sole responsibility for maintaining the confidentiality of the data related to its account including password and all transactions performed via this account. The Customer undertakes to promptly inform SELLSPAD in the event of unauthorized use of its account or password or any other breach of security and/or integrity of product and services provided by SELLSPAD. The Customer may be liable for damages suffered by SELLSPAD or any other user arising from the use of its SELLSPAD username, password or account by an unauthorized third party.
  11. Modifications and improvements. Any modification of the order after its acceptance or the conclusion of the contract must be made in writing to SELLSPAD which, if expressly accepted, reserves the right to modify its terms and conditions accordingly.Throughout the duration of the contract and provided that the Customer fully complies with his obligations, he may benefit from the improvements made to SELLSPAD and additional or supplementary services subject, where appropriate, to payment of the price asked by SELLSPAD.
  12. Hosting of services. The Customer acknowledges and agrees that the services offered by SELLSPAD are hosted on the computer servers of SELLSPAD’s external service providers. SELLSPAD shall ensure that the external service providers offer the Customer every guarantee of compliance with professional standards, especially in terms of security, privacy and the business continuity of the hosting services. The Customer acknowledges and agrees that except for gross or willful misconduct of SELLSPAD the responsibility of SELLSPAD will not be involved in the event a problem related to the hosting of the services arises. The Customer remains responsible for backing up, on its own computer or other device, all documents, all images and more generally any important content hosted by third parties via the service offered by SELLSPAD. SELLSPAD must conduct his business with due skills and diligence in providing the service. SELLSPAD cannot however guarantee that all the content stored by the Customer or to which he has access through the service will not suffer any damage, any corruption or any accidental loss.
  13. Responsibility. SELLSPAD is not liable contractually or non-contractually for the files, models, drawings, materials or any other items received from the Customer under the contract or used by the Customer. The Customer warrants that he owns and/or is legally authorized to use all the transmitted elements (typography, photographs, drawings, models, …) and is the sole responsible of their use and the use of services and systems provided by SELLSPAD, including compliance with regulations on the privacy protection. Customer will free SELLSPAD from all third party claims relating thereto, in principal, interests and fees. SELLSPAD is not responsible for equipment and materials provided by the Client who commits to insure them against all types of risks (theft, fire, damage, bug …) at the sole discharge SELLSPAD. SELLSPAD is not responsible for mistakes, failures and damage caused by third parties including subcontractors agents. The Customer is solely responsible for delays, defects and damaging consequences arising from inaccurate or incomplete information provided to SELLSPAD. The Customer acknowledges and agrees that SELLSPAD owes exclusively an obligation of means and SELLSPAD is responsible only for its intent or gross negligence. In the event that the Customer demonstrates the existence of a serious or willful misconduct from SELLSPAD the damage which the Customer can apply only includes repair damage resulting directly for the fault attributed to SELLSPAD excluding any other damages (such non-pecuniary, pleasure, enjoyment damage, a shortfall, fees, etc.) will not, in any event, exceed 75% (excluding taxes) of the amount actually paid by the customer under the contract and for the relevant period.
  14. Intellectual property. The Customer acknowledges that SELLSPAD is the sole owner of all intellectual or industrial property rights related to the provision of its services and to SELLSPAD software, with the exception of the content provided or uploaded by the Customer. Unless otherwise expressly stipulated, the agreed price does not therefore include any transfer of intellectual and/or industrial property rights in any capacity whatsoever. In the same spirit, the source codes of computer programs developed under the contract are never transferred to the Customer. SELLSPAD remains the full owner of its know-how developed during the performance of his services. Consequently, all rights of ownership and all intellectual property rights, titles and intellectual property interests related to the products and services including SELLSPAD software are and remain the exclusive property of SELLSPAD and if applicable for third party developers that have granted a licence to SELLSPAD for any portion of the software product, including but not limited to: the source code and the object code of the software; any copy of the application, whether or not carried out by SELLSPAD; any corrected or updated version of the proposed services and of the applications; any new, additional or improved version of the proposed services and applications; any error corrections, bug fixing, correction of programs or updates related to the proposed services and applications; all documents related to the proposed services and the way they operate, regardless the form and the material of any such documentation. The only rights granted to the Customer are, where appropriate, license rights for personal and non- transferable use for the duration of the contract. The Customer undertakes not to directly or indirectly infringe the rights, including intellectual property rights, of SELLSPAD, and acknowledges the right of SELLSPAD to control or to monitor compliance with this requirement.
  15. Exclusivity and non-poaching of staff. The Customer agrees to exclusively use directly or indirectly SELLSPAD services during the duration of the contract. The Customer acknowledges and agrees that only SELLSPAD can intervene for providing products and services including SELLSPAD Software. The Customer also commits not to poach, directly or indirectly, staff from SELLSPAD or independent providers. In case of violation of this clause Customer shall be liable to pay a compensatory lump sum equivalent to one year’s gross salary of the concerned employee, employee or contractor.
  16. Force majeure, unforeseeable and unpredictable circumstances. SELLSPAD may not be held liable contractually or non-contractually in the event of temporary or permanent failure to perform his obligations if such failure results from force majeure or unforeseeable circumstances. Cases of force majeure or unforeseeable circumstances shall be considered as the following events: 1) the total or partial loss or destruction of the SELLSPAD computer system or of its database when one or the other of these events cannot reasonably be directly attributed to SELLSPAD and it is not shown that SELLSPAD failed to take reasonable steps to prevent either of these events, 2) earthquakes, 3) fires, 4) floods, 5) epidemics, 6) acts of war or terrorism, 7) declared or undeclared strikes, 8) lockouts, 9) blockades, 10) insurrections and riots, 11) power failure (such as electricity), 12) a failure of the Internet or the data storage system, 13) a failure of the telecommunications network, 14) a loss of connectivity to the Internet or telecommunications network on which SELLSPAD depends, 15) an act or decision of a third party when that decision affects the performance of this contract or 16) any other cause beyond the reasonable control of SELLSPAD. If, due to circumstances beyond the control of SELLSPAD the performance of its obligations cannot be continued or is simply made more expensive or difficult, SELLSPAD and the Customer agree to negotiate in good faith and fairly an adaptation of the contractual terms and conditions within a reasonable time in order to restore the balance. Failing agreement within a reasonable time, SELLSPAD may invoke the termination of the contractual relationship concluded between them without compensation or indemnity of any kind whatsoever.
  17. Claims. The reception of works from SELLSPAD or their partial use implies that the Customer expressly accepts what has been delivered. Without prejudice to Article 8 claims relating to delivered products, works or provided services are only acceptable for so far that they are notified by registered letter describing precisely the complaints supported by evidence within eight days after the delivery or the invitation to take delivery or performance. These claims however do not suspend the obligation to pay within the agreed term. In any case, any action in contractual or non-contractual liability against SELLSPAD shall lapse 6 months after the date of occurrence of the fault.
  18. Disclaimer and privacy. The Customer expressly declares to have read the disclaimer accompanying the use of the Software SELLSPAD and have accepted it without any reserve. The Customer is solely responsible for the use of data and information collected via the products and services provided by SELLSPAD including SELLSPAD Software and expressly agrees to comply with all obligations that are directly or indirectly imposed by regulation relating to privacy. He will not illegally use products and services provided by SELLSPAD including SELLSPAD Software.
  19. Miscellaneous. The Customer warrants SellslPad against any claim or remedy from a third party arising directly or indirectly from any misrepresentation or false declaration of the Customer or a breach of his related obligations with SELLSPAD, his results and consequences. Customer expressly acknowledges that the formalities imposed on him to protest a bill or introduce a claim (detailed and substantiated letter sent by registered letter with recorded delivery) are substantial and will not unless the prior written consent of SELLSPAD be replaced or considered as such or replaced by another form (email, regular mail, telephone, …). The Customer expressly declares that he has received from SELLSPAD all information, details and advices enabling him to assess the nature of products and services and the scope of his rights and obligations and the limits assigned to and consequently disclaim any liability against SELLSPAD on the basis of a breach of a duty of information, intelligence, advice or warning. Customer may not, without the prior written consent of SELLSPAD, transfer all or part of the contract, the rights or obligations bound to this contract. In the event of any clause or part of these General Terms and Conditions of Business is found to be invalid or unforceable, the other clauses shall remain in full force and effect. All clauses shall be interpreted, where appropriate, in favour of SELLSPAD. The contract, its negotiation, its follow-up and consequences will be subject to Belgian law and any dispute relating thereto shall be within the exclusive jurisdiction of the courts of the district of Brussels. The proceedings shall be conducted in French.