GENERAL TERMS AND CONDITIONS LIVING STONE N.V
Article 1: Application of the terms and conditions – data protection
1.1. These general terms and conditions apply to all offers of, agreements with and collaborations with LIVING STONE NV, with registered office at 9630 Zwalm, Oudenweg (Beerlegem) 42, Belgium, and KBO-number 0446.629.867 (hereinafter ‘LIVING STONE’) notwithstanding stipulations to the contrary stated on the client’s documents.
1.2. Deviation from the present general terms and conditions will be valid only if established in writing. Other special conditions or deviations from the aforementioned conditions will be the subject of a separate agreement signed by both parties.
Article 2: Quotation – order form
2.1. Unless expressly stipulated in writing, providing a quotation does not give rise to any obligation on the part of LIVING STONE. Any estimate of the cost of the services provided by LIVING STONE is purely informative. Unless otherwise agreed in writing, LIVING STONE provides its services at an hourly rate, at the prices per hour and per day as specified in the quotation, which are indexed annually according to the Agoria index.
2.2. Any agreement with LIVING STONE is only validly established once LIVING STONE has confirmed its agreement in writing. This confirmation will be indicated at least by the signature and return by LIVING STONE of the quotation signed by the client.
2.3. The client must always confirm his order and/or assignment in advance on the basis of an order form or by a letter from a person authorised to lawfully represent the client, failing which LIVING STONE may decide on a discretionary basis not to start its work or to stop the work. The person or company that places the order guarantees the payment of the invoice, even if this invoice is to be drawn up and sent to third parties. The client is irrevocably bound by any signature of or approval of the quotation, even before this quotation has reached LIVING STONE. By virtue of placing his order or contracting an assignment, the client fully agrees to the general terms and conditions.
Article 3: Information
3.1. Upon request or agreement with the client, LIVING STONE may prepare and present designs, models, diagrams and other documents that require a preliminary analysis. The client must reimburse LIVING STONE for the costs incurred in the preparation of such documents or in giving briefings to the client. LIVING STONE requires that the client draw up and provide its own instructions, signed for approval on the date of the assignment.
Article 4: The obligations of the client
4.1. The client undertakes to provide the necessary (full and accurate) information to LIVING STONE and to provide all cooperation and consultation necessary to perform the services properly. The client is responsible for the required software and hardware environment and must have the necessary licenses to ensure that Works delivered by LIVING STONE function properly. The client is always responsible for his hardware and for the collection, security, storage and repair of data and for entering them on appropriate data media. The client must ensure the security of the system by making a physical copy of the programs and data and storing them separately. LIVING STONE cannot be held liable in any case in which the client fails to provide the necessary security or back-up. If the client asks LIVING STONE to carry out certain tasks involving software from third parties, the client must guarantee that he has the required permission and/or user rights to have LIVING STONE carry out these tasks. If the client makes use of the hosting services of LIVING STONE to offer a website or an application, he commits himself to correctly comply with all applicable laws (including intellectual rights, confidentiality, consumer protection, e-commerce, distance selling and protection of personal data). The client shall indemnify LIVING STONE against any third-party claim based on an (alleged) breach of one of the aforementioned obligations.
4.2. The client undertakes to explicitly state, in placing the order, the purpose and objective of the order. In the event of any change in the purpose or objective of what was originally envisaged in its proposals, LIVING STONE reserves the right to change the original quotation.
Article 5: Quotation and rights
5.1. LIVING STONE quotations are only binding insofar as the acceptance of the quotation reaches LIVING STONE within one month following the date of the quotation and insofar as the client makes no changes to the quotation. 5.2. All prices communicated by LIVING STONE are in EURO and exclusive of VAT. LIVING STONE’s prices are subject to increase according to change in one or more price-determining factors including – but not limited to – changed economic, fiscal and social conditions, labour costs, freight costs, purchase prices, material and parts prices or exchange rates. LIVING STONE will inform the client in writing in the event that it exercises this right.
Article 6: Delivery and transport
6.1. Goods always travel at the risk of the client and the shipping and delivery costs must be borne by the client.
6.2. In the event of sale or delivery from the registered office or workplaces of LIVING STONE or from the registered office or workplaces of the subcontractors of LIVING STONE, the client and his carrier bear the full and exclusive responsibility for loading and transport, even if LIVING STONE has cooperated voluntarily. LIVING STONE is therefore not liable for the damage to goods, damage suffered by the carrier or by third parties, due to, among other things, incorrect loading, transhipment, traffic accident, etc.
Article 7: Delivery deadlines
7.1. The specified delivery deadlines are only indicative.
7.2. Exceeding the delivery deadlines cannot form grounds for paying compensation to the client by LIVING STONE or for termination of the agreement or withdrawal of the order. All delivery deadlines will in any case be extended in case of force majeure. All delivery deadlines will also be extended if the client fails to provide documents, originals, drawings or models, or to return corrected proofs.
7.3. Any change to the order at the request of the client will cancel the specified delivery deadline.
Article 8: Intellectual property rights
8.1. A client who places an order with LIVING STONE is assumed to be authorized to do so. He must indemnify LIVING STONE against all claims of third parties regarding this assignment. LIVING STONE has the right to retain the original briefings and models of the client as supporting documents and for archiving purposes.
8.2. All industrial property rights and copyrights to all works, advice, reports, realizations, services, creations, studies, models, designs, documents, research, tests, images, drawings, films, software, tools, solutions, performances or inventions, etc. developed by or on behalf of LIVING STONE (hereinafter referred to as Works) shall be held exclusively and integrally by LIVING STONE or a third party with whom it has an agreement, from the moment of their creation, in the broadest sense, worldwide and for the duration of the rights. Their reproduction, communication to the public and/or commercialization, in whatever form and by whatever process, without prior permission from LIVING STONE, constitutes an infringement of LIVING STONE’s intellectual property rights and/or unfair competition. Without prejudice to the foregoing, the client must transfer any rights that it could nevertheless claim to Works, from the moment that they arise, free of charge, worldwide and in the broadest sense, to LIVING STONE. Without the express and prior approval of LIVING STONE, no changes of any kind may be made to its Works.
8.3 Once the invoices have been paid in full, the client obtains a non-exclusive and non-transferable user license on the entirety of the Works developed by LIVING STONE for the client in order to use them for the internal business purposes of the client. This license will be valid for the duration determined in the accepted quotation. The client is prohibited from granting sublicenses to third parties, making Works available to third parties, communicating them, using them for the benefit of third parties or commercializing them, without the explicit and written permission of LIVING STONE. The client shall at all times respect and protect the intellectual property rights of LIVING STONE to the Works or services of LIVING STONE and must immediately notify LIVING STONE of any infringement by third parties of which he becomes aware. If the Works delivered by LIVING STONE also include software or works from third parties (using open source software), their use is subject to the license conditions of that third party. If a third party claims that a Work delivered by LIVING STONE violates its rights, LIVING STONE has the right to decide in its own discretion to (i) refute these claims, (ii) adjust the Work or (iii) reclaim the Work from the client with a refund of part of the price. To the extent that the client supplies materials to LIVING STONE himself, such as software, images, text, etc., for inclusion in the Work to be developed, the client guarantees that this material does not infringe the rights of third parties. The client indemnifies LIVING STONE in this respect.
8.4. Only at the express request of the client will the designs or realizations be stored by LIVING STONE, provided the client bears the required storage and material costs. Under no circumstances can LIVING STONE be held liable for the loss of or damage to these documents.
8.5. LIVING STONE reserves the right to discreetly place its logo and/or its web address as a trademark on every Work. This logo must always be reproduced along with every multiplication or application. The client is obliged to provide 5 copies of each (physically) executed design to LIVING STONE.
8.6. The client explicitly authorizes LIVING STONE to use its name and the work delivered to it as a reference or in promotional material free of charge and without any limitation in time.
Article 9: Retention of title
9.1. The transfer of ownership of the Works takes place only if there is an explicit written agreement between LIVING STONE and the client, and in any event only after full payment of the agreed price. This means that if not validly paid for by the client, the Works remain the property of LIVING STONE. The client undertakes to insure the delivered Works from the time of delivery to the time of full payment.
9.2. LIVING STONE retains full ownership of any source code of software applications. If a source code is transferred to the client, the client will ensure that third parties who access this source code cannot use this source code or parts of it for third parties. In the event that the client makes any adjustments to a source code, it must notify LIVING STONE of this by e-mail.
Article 10: Guarantees
10.1. LIVING STONE make a commitment of means to draw up advice and reports, develop software, tools and solutions and/or provide (hosting) services according to the highest standard based on its expertise in marketing and go-to-market strategies. All commitments of LIVING STONE are only best-efforts commitments. However, the developed software and/or (hosting) services will be delivered to the client ‘as is’. The flawless operation of a computer configuration (the combination of hardware and software, including servers and supporting software for hosting) can never be fully guaranteed, due to external factors as well as to factors specific to the computer configuration, such that unexpected loss of (even all) programs and/or data can occur. LIVING STONE cannot be held liable for bugs, computer viruses and malware. If LIVING STONE offers hosting services to the client, then it can under no circumstances be held liable for the faulty operation of a Work delivered by it, if the client has not entered into a maintenance agreement with LIVING STONE or does not comply with its obligations under such agreement.
The software developed by LIVING STONE will be considered accepted by the client once it is installed in the client’s production environment. Other Works and Services (by means of hosting services) will be considered accepted if they are not promptly protested in accordance with article 11.2. If the client purchases products, software or services from third parties via LIVING STONE, LIVING STONE grants the client no other guarantees than the one effectively provided by the third party. Such products and any additional services are always subject to the license conditions and the maintenance conditions of the third-party supplier. If LIVING STONE has carried out an analysis that is implemented by another software supplier of the client on behalf another client, LIVING STONE accepts no liability for this implementation. LIVING STONE will in any case only provide a guarantee if the defect has been communicated to LIVING STONE in accordance with Article 11.2.
10.2. LIVING STONE will be responsible for the correction of any significant typesetting or creative errors attributable to it, insofar as there is no deviation from the original model. The client has the right to request one test for approval for every final execution. The client must sign this test as proof of unconditional agreement for final execution. Additional fees will be charged for all formal and substantive modifications not included in the original guidelines of the client. Any change to the instructions or any withdrawal of an order will only be valid and take effect from the day after it is received by LIVING STONE. In order to be valid, any verbal or telephone communication must be confirmed by letter or fax.
Article 11: Liability
11.1. All goods belonging to the client and located on the premises of LIVING STONE remain at the expense and risk of the client who expressly discharges LIVING STONE from any liability of any kind whatsoever. The same applies to the Works carried out and for the goods or deliveries intended for the client. Notwithstanding the precautions LIVING STONE takes to prevent loss and damage to the goods entrusted to it, or to the Works, LIVING STONE cannot be held liable should this occur.
11.2. If the client considers the Works delivered by LIVING STONE to be inadequate, either due to non-conformity to the order or due to defects in the quality other than as referred to under 6.3 or for any other reason, or if the client wishes to protest an invoice, he must submit a complaint to LIVING STONE within 8 days after the receipt of the Works or the invoice, respectively.
This complaint must be made by registered letter to LIVING STONE in which detailed reasons must be given for the reasons for the protest. Any other form of complaint (including return of an invoice, telephone complaints, refusal of acceptance of a delivery …) will not be accepted and will remain without legal consequences. The parties declare their agreement that no complaints can be accepted after the deadline of 8 days. Complaints directed to representatives or appointees of LIVING STONE will not have any legal consequences. If the complaint is correct, timely and justified, LIVING STONE reserves the right to remedy this complaint at its own discretion. If it turns out that LIVING STONE is not liable for the complaint, then LIVING STONE has the right to charge the client for the costs of investigating it.
The partial utilization of the delivered Works, however, entails the acceptance of the whole; defects in a part of the delivered Works do not entitle the client to reject the entire delivery. No complaint, even if it is well-founded and is communicated to LIVING STONE in accordance with this Article 11.2, entitles the client to postpone the payment or change the modalities thereof.
11.3. LIVING STONE cannot be held liable for any error (even a gross error) on its part or the part of its appointee(s), except in the case of fraud. LIVING STONE can never be held liable for any consequential damage, such as, for example, loss of expected profit, decrease in turnover, increased operational costs, loss of clientele, damage to reputation or to machines or loss of data, that the client or third parties may suffer as a result of any error or negligence on the part of LIVING STONE or its appointee(s). In any event, LIVING STONE’s total liability will never amount to more than (i) either the price paid by the client to LIVING STONE for the Work or service that gave rise to the claim, with a maximum of 5,000.00 (five thousand) euros ( ii) or the replacement of the Works or services, at the discretion of LIVING STONE, with the exclusion of all indemnities and the reimbursement of any costs or fees. Any liability on the part of LIVING STONE will in any case only arise if (i) the client issues LIVING STONE with written notice of default in accordance with article 11.2, (ii) grants LIVING STONE a reasonable period in which to rectify the shortcoming, (iii) LIVING STONE fails to repair the defect even after that period and (iv) the client takes measures to limit the damage as much as possible. LIVING STONE is not liable for errors due to insufficient or wrong input from the client (e.g. incorrect briefing, insufficient instructions, questionable, badly written or incomplete texts, etc.), changes made by the client or third parties, incorrect or unauthorized use or malfunction of the hardware and/or software. LIVING STONE does not accept any liability for (defects in) the products and/or services of third parties. LIVING STONE does not accept any liability whatsoever for the content of the website(s) or application(s) of the client that may be offered via the hosting services of LIVING STONE. LIVING STONE reserves the right to promptly remove all information and/or to prevent access to it, as soon as LIVING STONE becomes aware of the (even) possibly unlawful nature of the activity that the client conducts or of the information that they publish via the website or application.
LIVING STONE cannot be held liable for hidden defects, nor for the resulting direct and/or indirect damage, unless it is clear that LIVING STONE was aware of these defects.
11.4. LIVING STONE cannot be held liable if it is unable to fulfil its obligations for reasons beyond its control.
11.5 In projects involving different suppliers, any intervention of LIVING STONE in no way relieves the other suppliers from their specific responsibilities.
Article 12: Payment modalities
12.1. The terms payment for the Works or services that are sold are as follows:
– 30% of the order must be paid at the time of the written confirmation of the offer by the client;
– The balance will be invoiced monthly in proportion to the work delivered, as indicated by LIVING STONE’s time registration and project documentation.
12.2. All payments are payable at Beerlegem (Zwalm), Oudenweg 42 and must be made on behalf of LIVING STONE. The client will always be responsible for all V.A.T. as well as all other taxes. Each payment is charged on the oldest invoice due, and first on the interest and costs due.
12.3. All invoices are payable at the indicated price, on their maturity date without discount or deduction, unless otherwise specified. In the absence of mention of a maturity date, the payment term is 30 days following the invoice date. Invoices under 30,000 euros are payable in cash. The provisions on an invoice are subordinate to these general conditions.
If the invoice is not paid or not paid in full on the maturity date, late payment interest will become lawfully payable and without prior notice of default in the amount of to 10%, or the legal interest rate if it is higher. If the invoice remains unpaid on the maturity date, the balance will be automatically and without prior notice of default increased by a penalty of 10%, with a minimum of € 50. Any non-payment of an invoice on the maturity date, any delay in the execution of the commitments entered into by the client, refusal and/or protest of a bill of exchange, renders all other invoices to the same debtor immediately payable.
12.4. If the client fails to pay one or more overdue invoices in full or commits another serious contractual default, LIVING STONE is free to terminate the contract and to invoice the client for a severance payment of at least 20% of the amount established at the time of the signature of the contract and not yet invoiced, with a maximum of an amount corresponding to the actual services rendered. If the client terminates the contract prematurely and without just cause, LIVING STONE will invoice a severance payment of at least 50% of the amount not yet invoiced, with a maximum of an amount corresponding to the actual services rendered.
12.5. If LIVING STONE uses subcontracting, the third-party supplier will invoice directly to the client, unless the amount concerned is below 3000.00 euros or unless otherwise agreed with the Client. In that case, LIVING STONE will take over the invoicing from the third-party supplier and invoice the amount to the client. LIVING STONE can never be held liable for non-payment or late payment of the client to the supplier.
Article 13: Suspension of delivery – cancellation of order
13.1. If it becomes apparent that the client’s financial condition is subject to serious doubt or the client fails to meet one of his obligations, LIVING STONE is entitled to suspend any further delivery until the due invoices have been paid, the order already delivered has been paid, and/or all commitments have been correctly executed by the client. The interest mentioned above sub 12.3 and the damage clause mentioned sub 12.3. will be applied, unless LIVING STONE demands the return of the Works already sold. The above stipulation applies even if the contract was established when these invoices were already due and payable. If, despite notice of default sent by registered letter, the client fails to pay the outstanding invoices within 8 calendar days or to remedy any other serious contractual breach, the collaboration will be terminated with immediate effect and LIVING STONE will be discharged from any further obligation. LIVING STONE reserves the right to claim compensation for the Works and services provided by LIVING STONE (even partially) and for the costs incurred by LIVING STONE as a result of the premature termination of the contract. The paid advance in any case remains acquired by LIVING STONE for the costs already incurred.
Article 14: Confidentiality, non-competition and non-recruitment
The client, as well as all of its employees, freelancers and partners, undertake to treat the commercial and technical information and trade secrets it receives from LIVING STONE, even after the termination of the cooperation with LIVING STONE, in a confidential manner and not to use them to their own advantage. The client undertakes, for the duration of this collaboration and for a period of twelve months after its termination, to refrain from directly or indirectly and in any capacity, (i) developing activities on Belgian territory or carrying out activities that are in competition with those of LIVING STONE and (ii) hiring employees and/or collaborators of LIVING STONE. In case of infringement by the client, or one of its employees, partners or freelancers, the client will owe fixed damages of 50,000 EUR (fifty thousand euros) per infringement to LIVING STONE. However, LIVING STONE reserves the right to claim higher compensation if its actual losses are higher.
Article 15: Final provisions
15.1. Instances of force majeure, such as strikes, public unrest, administrative measures, illness or serious family circumstances, and other unexpected events over which LIVING STONE has no control, relieve LIVING STONE, for the duration and within the scope of the impact, from its commitments, without the client being entitled to claim any price reduction or compensation.
15.2. If any provision of these general terms and conditions should be rendered null and void or unenforceable, the other provisions will remain in full force and LIVING STONE and the client will replace the null and void or unenforceable provision by another provision that approximates the purpose and the scope of the provision as closely as possible.
Article 16: Disputes
16.1. This contract is governed by Belgian law. In case of dispute, only the courts and tribunals of East Flanders (department Gent) are competent. However, LIVING STONE reserves the right to bring any dispute with the client before the courts of the client’s domicile.
By accepting these terms and conditions