General terms and conditions of sale

 

ISTARII SRL's General Terms and Conditions of Sale (version up to 21 November 2019)

PREAMBLE

The order noted in the offer of service and in the order form is subject to the general conditions expressed here. In the event of contradiction between all or part of the general conditions of istarii and all or part of any other general conditions, the former shall in all circumstances take precedence over the latter.

These general terms and conditions apply to all products and services developed and all services provided by istarii, unless otherwise stated in these general terms and conditions.

1. DEFINITIONS AND INTERPRETATION

istarii " and/or the " Developer "means istarii SRL;

Customer "means the contracting party requiring the services of istarii as described and

identified in the Particular Conditions and/or in the order form and the service offer;

Parties "means collectively istarii SRL and the Customer;

Part "means one of the Parties to be referred to individually;

Contract "means the entire contractual relationship between the Parties, the content of which is set out in the Special Terms and Conditions and these general terms and conditions, as well as in the service offer and the order form;

Special Conditions "means the additional document, if any, containing the Special Conditions as signed by the Parties;

2. DURATION AND END OF CONTRACT

2.1 The Contract shall take effect on the date agreed in the Special Conditions and shall remain in force until the date of its termination.

in force until :

(i) full performance of all obligations under the agreement, or

(ii) early termination of the Contract within the limits described below.

2.2 Each Party has the right to terminate the Contract early by means of a registered letter in the event of a serious breach by the other Party of any of its obligations under the Contract and provided that no solution has been reached within 30 days after the Party that is accused of the serious breach has been given formal notice to remedy it by registered letter stating the said serious breach.

2.3 Each Party is entitled to terminate the Contract without notice by registered mail in the event of the insolvency, bankruptcy or the initiation of any collective insolvency proceedings of the other Party.

2.4 Termination of the Agreement does not affect the rights already acquired by the Parties on the date of termination.

2.5 On the effective date of termination of the Contract, all legal obligations, rights and duties arising therefrom shall terminate, except :

(i) the Customer shall remain liable to pay any balance due to istarii for services performed under the Agreement; and

(ii) istarii shall be obliged to return to the Customer all of its properties, whether tangible or intangible.

3. COLLABORATION BETWEEN THE PARTIES

Each party undertakes to collaborate actively in order to ensure the proper execution of the contract. Each Party undertakes to communicate any difficulties of which it becomes aware, as they arise, to enable the other Party to take the necessary measures. Istarii has informed the Customer that the proper performance of the services is based on this necessary active collaboration. Should the need arise, the Client may appoint a project manager or set up a follow-up committee to monitor the progress and completion of the project.

Parties are under a general obligation of good faith.

4. FINANCIAL CONDITIONS

The financial conditions are shown on the order form or quotation.

The prices defined are firm and final, subject to compliance with the scope of services provided for in this contract and in the specifications. Any modification of the scope or failure to comply with the schedule due to the Customer will lead to a price revision on the basis of the istarii's tariff for services defined in the financial conditions.

5. PAYMENT

5.1 Unless otherwise agreed, our prices are exclusive of VAT and other taxes.

(a) Unless otherwise agreed, invoicing shall be as follows: 30 % at signature, balance once all istarii obligations have been fulfilled, or maximum 45 days after the order has been placed.

(b) Invoices of istarii SRL are payable in Belgium in cash unless otherwise stated on the order form.

Any invoice unpaid on its due date, will automatically and without notice of default, give rise to a compensation fixed at 10% (ten percent) of the total amount of the invoice.

The amount of the invoice will also be increased by right and without prior formal notice, by default interest set at 15% (fifteen percent) per year, in the event of non-payment on the due date of the invoice.

In the event of non-payment on the due date, istarii expressly reserves the right to suspend the performance of the services. The fact of suspending the services does not exonerate the Customer from the payment of the totality of the sums due and the applied increases.

5.2 Periodic benefits :

Unless otherwise stipulated, the payment of periodic services (maintenance, hosting, ...) is made at the publication or maximum 45 days after the order of the product and at each anniversary date for the following period. It is expressly agreed that the subscription is tacitly renewed from year to year, but may be cancelled one month before the anniversary date by either party by registered mail. Termination will then take effect on the anniversary date. Failure to pay on the due date will result in termination of services without notice from istarii.

6. INTELLECTUAL PROPERTY

6.1 The Customer's upstream intellectual rights remain his property.

6.2 The Customer grants istarii a non-exclusive and non-transferable right to use the Customer's upstream intellectual property rights to the extent and for the duration necessary for the performance of this Agreement.

6.3 The intellectual rights upstream of istarii and the intellectual rights downstream remain the property of istarii.

In particular, istarii will retain ownership and retain for its own use all concepts, techniques, specific skills, pre-programmed routines, procedures, technologies or codes developed, used or written in the execution of this contract or which are part of istarii's know-how. Upon Final Delivery and once the total agreed price has been paid in full, the Customer will be guaranteed a non-exclusive and non-transferable right to use istarii's upstream intellectual rights as well as the downstream intellectual rights, to the extent necessary for the operation of what is the subject of the Contract and its consultation by the users intended for this purpose.

6.4 The Customer undertakes :

(i) to protect the intellectual rights upstream of istarii against any copy, adaptation, variation, modification, in any direction infringing the intellectual rights upstream of istarii and the intellectual rights downstream, as well as to protect them against any unauthorized use by third parties, including Internet users; and

(ii) to keep confidential code, know-how, computer programs, including, but not limited to, high and low level language source codes, program files, data files, system programs and logic, interfaces, algorithms, system design and concepts, as well as methods and processes associated with such programs.

7. ADVERTISING

After Final Delivery, unless otherwise stated, the Customer expressly authorizes istarii to cite it, together with a summary of the work carried out, on the istarii website and in all its marketing and advertising tools and to indicate that it is work carried out by istarii. It also authorizes istarii to include and maintain a reference to istarii on the homepage of the delivered product as well as on the download platform.

8. RESPONSIBILITY

8.1 Istarii will provide its services in accordance with the rules of the profession; it is expressly agreed that it will only be bound by a general obligation of means. The Client is solely responsible for the information content that he puts online or requests to be put online. He undertakes to comply with all rules or regulations that could prevent, limit or regulate the dissemination of information.

8.2 istarii shall not be liable for any indirect losses, damages, costs or expenses of any kind howsoever caused, whether in contract, tort or otherwise, including but not limited to loss of production, loss or corruption of data, loss of profits or contracts, loss of uptime and loss of goodwill or anticipated savings arising out of or in connection with the subject matter of this Agreement.

8.3 istarii shall not be liable for damages incurred by the Customer as a result of changes to the subject matter of this Agreement made by the Customer or by a user of the delivered product.

8.4 In any event, the liability of istarii is limited to gross negligence and fraud and to the amount of the remuneration received in the performance of the Contract.

8.5 istarii, using features from external companies such as Apple, Google, Youtube, Facebook, etc. is subject to the specific terms and conditions of each of these companies. The istarii company being dependent on the general terms and conditions of its external suppliers, istarii disclaims any responsibility for any possible unforeseeable changes in commercial policy, services, techniques, or, in general, for any failure whatsoever of its suppliers.

9. UNLAWFUL OR PREJUDICIAL CONTENT

9.1 The Customer is solely responsible for providing the informational content of the website or application, for example all the information that the Customer wishes to see reproduced on the application or website, whether hidden or visible in the event of consultation by a user.

The Customer expressly warrants that such informational content does not violate any applicable law. The Customer undertakes to comply with all applicable laws, regulations, contracts and generally accepted codes of conduct that prevent, limit or regulate the dissemination of certain information, for example, rules relating to advertising, protection of privacy, protection of intellectual property, prohibition of child pornography, etc. The Customer agrees to comply with all applicable laws, regulations, contracts and generally accepted codes of conduct that prevent, limit or regulate the dissemination of certain information. The Customer shall defend istarii against any third party claims that the informational content of the application or website violates any applicable law, regulation.

9.2 On its own initiative, or on the initiative of a third party, the Developer may decide to temporarily or permanently suspend Final Delivery or access to all or part of the Website or the Application, if it can reasonably believe that a legal, regulatory or contractual provision has been or is being violated. The suspension of any service provision by istarii pursuant to this section does not suspend the Customer's payment obligations. The Customer expressly waives its right to claim damages in the event of an error of judgement by the Developer, except in cases of fraud or gross negligence on the part of istarii.

10. PROTECTION DES DONNÉES PERSONNELLES / GENERAL DATA PROTECTION

REGULATION (GDPR)

istarii undertakes to use only the Customer's personal data for administrative purposes. The Customer has access to his personal data upon written request. Information related to credit card numbers and bank details will only be used for the payment of the agreed price.

11. NON-SOLICITATION

The Parties agree that during the execution of this Contract and for a period of 2 consecutive years following the end of the Contract, they shall not solicit, employ or hire in any way, directly or indirectly, an employee or consultant of the other Party, or a person who has assumed one of these qualities during the period of execution of the Contract.

If a Party contravenes this clause, that Party should pay to the other Party, by way of damages, a sum equal to twice the annual salary and/or remuneration of that person, without prejudice to any actions or claims for compensation which may be brought by the injured Party.

12. MAJOR STRENGTH

The Parties shall not be liable to each other in any manner whatsoever for destruction, damage, delay or any inconvenience of this nature caused by war, rebellion, civil war, riots, strikes and industrial disputes, fire and explosion, earthquake, flood, drought or bad weather, requisition or other actions or orders imposed by any section of the Government or by any constituted body.

13. AMENDMENT

In order to ensure at all times an adapted and efficient service to the Customer, istarii reserves the right to unilaterally modify the present general conditions at any time, without having to invoke any particular reason.

14. DISCLAIMER

The fact that a Party does not require, in one way or another, the performance of a provision of the Contract or does not exercise its rights, shall not be considered as a waiver of this provision or a waiver of the exercise of these rights, these provisions or these rights remain in full force and effect. The single or partial exercise by one of the Parties of one of its rights shall not prevent their subsequent and repeated exercise or the exercise of another of its rights.

15. DIVISIBILITY

In the event that any provision of the General Terms and Conditions or the Special Terms and Conditions, or any schedule or document attached thereto should be declared, to any extent, invalid, illegal or unenforceable, such provision shall, to that extent, be severed from the remaining provisions, the latter continuing to be fully valid to the fullest extent permitted by law.

The Parties shall then consult each other in good faith with a view to replacing the provision in question by other provisions which, from an economic point of view, will have substantially the same scope for the Parties.

16. CESSION

Without prejudice to the subcontractors designated in the Special Conditions, neither Party may assign, transfer, charge, encumber or sell all or any part of this Agreement or its rights or obligations hereunder without the prior written consent of the other Party.

17. INDEPENDENCE OF THE PARTIES

Each Party is acting independently in the performance of this Agreement and not as an employee or agent of the other Party, and neither Party will assume any obligations of any kind, express or implied, on behalf of the other Party, nor will it bind or obligate the other Party in any way.

18. COMPLETENESS

The Contract, as defined in the Special Terms and Conditions and in these General Terms and Conditions, including all documents that the parties have agreed to attach thereto, constitutes the one and only agreement existing between the parties, and supersedes all other agreements between the parties, whether written or oral, relating to the subject matter of the Contract. There are no other covenants, agreements or understandings, express or implied, other than those expressly contained in this document.

19. NOTIFICATIONS

All notifications by a Party under this Contract shall be deemed to be duly given if they are in writing, and delivered, either by hand with an acknowledgement of receipt, or by registered mail, or by fax, to the address specified on the first page of this Contract or to an address to be designated by the other Party.

20. APPLICABLE LAW AND JURISDICTION

The formation, validity and performance of this Agreement shall be governed in all respects by Belgian law. Any dispute in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts of Brussels.

21. WARRANTIES

21.1 The Developer shall make every effort to provide an application free of viruses, worms, Trojan horses, cancelbots and any other contamination upon Final Delivery.

21.2 The Developer warrants and undertakes that, to the best of its knowledge and belief, the Developer's upstream and downstream intellectual property does not infringe the copyright of third parties or any other intellectual property rights. In the event that all or part of the Developer's upstream intellectual property or downstream intellectual property is, or in the opinion of the Developer may be, the subject of a claim, suit or proceeding for any infringement of such rights, the Developer may, at Customer's expense, take one of the following actions:

(a) obtain for the Customer the intellectual property rights to use, in an appropriate manner, the upstream intellectual property rights, downstream intellectual property rights or any relevant part thereof; or

(b) replace the Developer's upstream intellectual property rights, downstream intellectual property rights or any relevant part thereof with other appropriate rights or parts thereof; or

(c) appropriately modify upstream intellectual property rights, downstream intellectual property rights or any relevant part thereof so that they no longer infringe any rights.

21.3 The Customer warrants and undertakes that any upstream intellectual property rights of the Customer provided by the Customer to the Developer for inclusion in the application or used for the development of the application are the property of the Customer, or that the Customer has the authorization of the legitimate owner to use each of these elements.

21.4 The Customer releases the Developer from any liability for any claim by third parties that the Customer's upstream intellectual property rights violate any applicable law, regulation, contract or code of conduct, or infringe the intellectual rights of a third party or any other legitimate interest of such third party.

22. MAINTENANCE

The Customer has been informed and acknowledges in the context of a maintenance contract with istarii that in the current state of information technology and its rapid development it cannot be guaranteed that the delivered product will function without interruptions and without malfunctions; nevertheless istarii undertakes to correct potential malfunctions as soon as possible. This maintenance will only cover failures of the elements supplied by istarii and provided that the Customer has complied with the instructions for use of the product. Any modification made by the Customer or any person other than istarii is outside the scope of the maintenance contract. Any repair, restoration or modification of the product following an intervention of the Customer will be invoiced at the hourly rate in force.