General Terms and Conditions Futurewave®
1. IDENTIFICATION OF THE PARTIES
These general terms and conditions are applicable between
(i) The “Service Provider” meaning FUTUREWAVE SRL, with registered office at Fabrieksstraat 15, 1930 Zaventem, Belgium, registered with the Crossroad Bank for Undertakings under the number 0746.784.291, and
(ii) The “Client” meaning any natural or legal person who uses the services of the Service Provider as identified on an order form agreed on with the Service Provider.
2. Definitions
As used in this Agreement, the following terms shall have the meanings set out in this Article 2, unless the context in which the term is used gives it another meaning:
2.1 “Affiliate” means any entity which, directly or indirectly, owns or controls, is owned or is controlled by or is under common ownership or control with one of the Parties.
2.2 “Agreement” means the provisions of these general terms and conditions, possibly supplemented by the special terms and conditions expressly agreed between the Parties and by the terms of the order form.
2.3 “Confidential Information” means any information of any nature whatsoever meeting the following cumulative conditions: (i) the information is disclosed prior to, on or after the Agreement Date, by one of the Parties or its agents (the “Disclosing Party”) to the other Party or its agents (the “Receiving Party”), either directly or indirectly, whether in writing, verbally or otherwise and (ii) the information is neither generally known to, nor readily accessible by, third parties to this Agreement. Confidential Information includes, without limitation (i) non-public information relating to the Disclosing Party’s business plans, analyses, forecasts, predictions or projections, intellectual property, software, technology, technical information, business models, pricing and pricing strategies, marketing ideas, data (including sales data), sales projections, financing plans, valuations, capitalization, budgets and other financial information, (ii) third-party information that the Disclosing Party is authorized to disclose and obligated to keep confidential and (iii) information of such a nature that either Party may reasonably believe it to be of strategic, economic or security importance to the other Party, even if this has not been expressly mentioned.
2.4 “Creation” means all creations (including databases and software), works, inventions, information and texts emanating from or associated with the performance of the Agreement and the Client's precise needs, in all cases for which the Service Provider owns the Intellectual Property Rights and existing at the date of the signature of the order form or arising during the performance of the Agreement.
2.5 “Force majeure” means facts or circumstances beyond the control of the Party invoking it which could not reasonably be foreseen or avoided, including by way of example: changes in the normative framework, war, civil disturbance, destruction of installations or materials by fire, flood, earthquake, explosion or storm; labour unrest ; epidemic, failure of public utilities or common carriers, internal or external strikes, labour unrest, acts of terrorism, natural disasters, floods, fire, failure of suppliers or subcontractors, failure of electricity network providers, general internet failure, failure of telecommunications services. Despite the knowledge of its existence by the Parties, it is expressly agreed that the coronavirus epidemic constitutes a case of Force Majeure when it leads to consequences that could not reasonably be foreseen or avoided.
2.6 “Generic Creation” means (i) a Creation that can be used by the Service Provider for various projects or services, or for several clients and (ii) lines of code made available by third parties, free of charge or for a fee, including open-source software and modules.
2.7 “Intellectual Property Rights” means all of the following (by whatever names they may be known or referred to) existing at the date of signing the order form or arising during the performance of the Agreement: (i) know-how and trade secrets; (ii) patents; (iii) utility models, designs and all other industrial property rights; (iv) trademarks and other distinctive signs (including domain names); (v) sui generis rights on databases (vi) copyrights, including copyrights on software, and (vi) all other intellectual property rights of any kind recognised by the provisions of Book XI of the Belgian Code of Economic Law and by any equivalent normative instrument of European law, foreign law or international law.
2.8 “Net Sales” shall mean, with respect to any Specific Creation, the gross receipts from sales of such Specific Creation by the Client, its affiliates or partners, as the case may be (the “Selling Party”), in arm’s length sales to Third Parties less the following deductions allowed by the Selling Party and incurred, allowed, paid, accrued or specifically allocated as reported by the Selling Party in its financial statements, for: (a) customary and reasonable trade, quantity, and cash discounts; (b) freight, postage and duties, shipping and insurance charges relating to such Specific Creations to the extent paid by the Selling Party; (c) sales taxes (such as value added tax or its equivalent) and excise taxes, other consumption taxes, customs duties and compulsory payments to governmental authorities and any other governmental charges imposed upon the importation, use or sale of such Specific Creation to Third Parties (excluding any taxes paid on the income from such sales), to the extent the Selling Party is not otherwise entitled to a credit or a refund for such taxes, duties or payments made; (d) allowances or credits to customers or charges back from customers on account of rejection or return of Specific Product subject to royalty under this Agreement or on account of retroactive price reductions affecting such Specific Creation; and in the event that non-monetary consideration is received for any Specific Creation, Net Sales shall be calculated based on the average price charged for such Specific Creation in the relevant country during the applicable period, or in the absence of such sales, the fair market value of the Specific Creation, as determined by the Service Provider in good faith. Sales between or among the Client and its affiliates or partners shall be excluded from the computation of Net Sales except where such affiliates or partners are end users, but Net Sales shall include the subsequent final sales to Third Parties by such affiliates or partners. Notwithstanding anything to the contrary contained herein: (i) if the Specific Creation is sold or offered for sale together with other products; and (ii) the price of the Specific Creation is reduced or discounted, and (iii) such reduction to the Specific Creation is greater than that offered on the other products, then the Net Sales for the Specific Creation shall be adjusted as if the discount or reduction had been applied to all products of such combination in an equitable manner.
2.9 “Services” means the products and services mentioned in an order form signed by both Parties.
2.10 “Specific Creation” means a Creation specially created by the Service Provider for the provision of a particular Service to the Client and which is not a generic Creation. Specific Creation includes any product based on a Creation specially created by the Service Provider for the provision of a particular Service to the Client.
3. Purpose
3.1 The purpose of this Agreement is to define the terms and conditions under which the Service Provider provides the Client with the services determined in the order form.
3.2 No services other than those expressly mentioned in the order form shall be deemed to be included, even tacitly, in the order form or in this Agreement. The order form may, if necessary, take the form of an email exchange between the Service Provider and the Client, the mutual confirmation of their agreement on the content of this exchange by the Parties being in this case equivalent to the signature of the order form. The order form can also be validly signed by the Parties using Docusign [A1] [A2] [A3] or any other online document signing services. The Agreement shall be deemed to be performed at the Service Provider's registered office.
3.3 Any order placed with the Service Provider shall only be binding on the Service Provider after written confirmation by the Service Provider. Changes made by the Client to the Service Provider's order form or offer shall only be valid if the Service Provider has accepted and confirmed them in writing. If the payment of a deposit is provided for in the order, the Client may not rely on the non-payment of the deposit to be released from its obligations. The provision of a quotation by the Service Provider does not entail any obligation on the part of the Service Provider to perform the Service. The Service Provider reserves the right to withdraw its offer at any time before it is accepted by the Client.
3.4 In the event of unilateral cancellation of an order by the Client prior to the start of the execution of the Service, a fixed compensation equal to fifty (50%) percent of the amount of the order is due by operation of law and without formal notice to the Service Provider. In the event of unilateral cancellation of an order by the Client during the performance of the Service, a fixed compensation equal to one hundred (100%) percent of the amount of the order is due to the Service Provider by operation of law and without formal notice. This provision is not applicable when the unilateral cancelation of the order by the Client is the consequence of a serious breach or wilful misconduct attributable to the Service Provider.
3.5 The Service Provider expressly reserves the right to start the provision of the Services only after payment of the deposit, if a deposit is due. In the event of a delay in the payment of the deposit, the Service Provider shall not be liable for exceeding the deadlines for the provision of the Services.
3.6 If a subsidy or other form of financial support has been requested to cover all or part of the cost of providing the Services, the failure to obtain all or part of the subsidy or of the financial support shall not affect the validity of this Agreement and the order form and the Client's obligation to pay the full price agreed upon to the Service Provider will remain entirely applicable.
4. Term and termination
4.1 This Agreement shall enter into force on the date of the signature of the order form by all Parties.
4.2 This Agreement is concluded for a fixed term ending automatically on the date mentioned on the order form, unless the order form stipulates that the Agreement is concluded for an indefinite term.
4.3 This Agreement shall be terminated by operation of law, without notice or compensation, in the event of bankruptcy, a situation covered by the provisions of Book XX[A4] [A5] of the Belgian Code of Economic Law, voluntary or judicial liquidation or irremediable poor condition of the affairs of the Service Provider or the Client.
4.4 This Agreement may be terminated without notice or compensation and without prejudice to other remedies, by either Party in the event of serious breach attributed to the other Party in the performance of the contractual obligations, without prejudice to the payment of damages by the Party responsible for the serious breach and provided that the Party wishing to terminate the Agreement for serious breach has given the Party to which the serious breach is attributed a period of twenty (20) business days to remedy the serious breach, starting from the date on which a registered letter is sent to the Party to which the serious breach is attributed, precisely identifying the nature of the serious breach. The mere fact of not remedying the serious breach within the above-mentioned period of twenty (20) business days shall automatically entail the termination of this Agreement at the expense of the Party to which the serious breach is attributed, provided that the breach and its seriousness are established.
4.5 Where this Agreement is concluded for an indefinite period, either Party may terminate the Agreement at any time subject to a notice period of three (3) months. The will of one of the Parties to terminate this Agreement must be notified to the other Party by sending a registered letter or an e-mail with acknowledgement of receipt. The notice period shall begin on the first day of the month following the month in which the notification was sent by one of the Parties to the other Party. When this provision is applied and unless otherwise agreed in writing by the Parties, the Client shall remain liable to pay the Service Provider the price of all Services provided up to the date of termination of this Agreement.
4.6 Unless otherwise agreed in writing by the Parties, the termination of this Agreement for any reason whatsoever shall not relieve the Parties of their obligations and liabilities arising prior to the date of termination or which, expressly or tacitly, arise or continue to apply after the date of termination of this Agreement.
4.7 The Service Provider is entitled to invoke the non-payment of an invoice or the failure to settle any problem relating to this Agreement in order to prevent the Client from using the results of the Services or the Services already performed under this Agreement. The Service Provider is also entitled to suspend the performance of any obligation resulting from this Agreement or an order form in the event of non-compliance by the Client with this Agreement and the order form.
4.8 It is expressly stipulated that the following provisions of this Agreement shall continue to apply even after the termination of this Agreement: invoicing (article 7), confidentiality (article 8), references (article 9), intellectual property rights (article 10), feedback (article 11), non-poaching (article 13) liability (article 14), warranty (article 15), personal data (article 17), applicable law and dispute settlement (article 23).
5. Terms of collaboration[A6] [A7]
5.1 Upon the beginning of any order, the Client shall mention at least one responsible person duly authorised to commit the Client in relation with the Service. The Service Provider will mention at least one person responsible for complaints, planning and general communication regarding the Service.
5.2 The Service will be performed in accordance with this Agreement and in accordance with the terms of the order form.
5.3 The Client shall at all times and free of charge provide the Service Provider with all information required or requested, documents and assistance that are useful for the proper performance of the Service. The information provided by the Client must be accurate and correct and must be provided to the Service Provider as soon as possible. The Service Provider shall not be liable and the Service Provider offers no guarantee in the event that the failure of a Service is attributable to the Client's failure to inform the Service Provider.
5.4 The Service will be provided based on an obligation of means. The Service Provider undertakes to provide the Service in accordance with the laws and regulations in force, with all the skill, care and diligence reasonably expected from qualified and competent professionals. Failure of the Service to deliver the expected result will not be considered as a valid reason for the Client to terminate this Agreement and/or the order for breach attributable to the Service Provider.
5.5 The Service Provider's mention of deadlines for the provision of the Service is for information purposes only and does not in any way constitute an obligation of result, unless otherwise stipulated. The time limits for execution shall only begin to run from the date of delivery of all the elements necessary for the performance of the Service by the Client. In addition, any delay attributable to the Client at the start of or during the performance of the Service shall result in an extension of the applicable deadlines. For a deadline to be mandatory, this deadline must be clearly specified as such on the order form and accepted in writing by the Service Provider. If the Service Provider fails to comply with a validly accepted mandatory deadline, the Client may obtain compensation for any loss caused by the Service Provider's delay, the reality and amount of which it shall establish, but which may not exceed five (5) percent of the total price of the order. Even when a deadline has been validly accepted by the Service Provider, the Service Provider is no longer bound by the deadline in the following circumstances: (i) the occurrence of Force Majeure, (ii) non-compliance by the Client with the terms of payment, (iii) the modification of the order form by the Client, accepted by the Service Provider, after its validation by both Parties, (iv) any delay attributable to the Client, for example for the provision of information requested by the Service Provider.
5.6 The Service Provider does not offer the Client any guarantees other than those set out in these general terms and conditions and/or the order form.
6. Prices
6.1 The Service Provider's prices are established in accordance with the terms of the order form.
6.2 Unless otherwise mentioned on the order form, the Service Provider's prices and the amounts referred to in the order form do not include VAT. The Client undertakes to pay the VAT and the costs and disbursements as invoiced by the Service Provider. Any increase in the rate of VAT or any new tax imposed during the performance of the Agreement shall be charged to the Client.
6.3 Unless otherwise stated on the order form, the price mentioned on the order form does not include the Service Provider's costs and disbursements specifically made for the provision of the Service to the Client (e.g. accommodation costs, travel costs outside Belgium, material costs, etc.). These costs and disbursements will be paid by the Client to the Service Provider in accordance with the terms of the order form.
6.4 Unless otherwise stated in the order form, half of the price due to the Service Provider include the compensation for the transfer (assignment or licence) of the Service Provider's economic copyright to the Client.
6.5 The Service Provider shall invoice the Client for any travel or services rendered unnecessary or superfluous by the Client.
6.6 All payments due under this Agreement shall be payable, in full, in euros, regardless of the country(ies) in which sales are made or in which payments are originated. For the purposes of computing Net Sales of Specific Creations sold in a currency other than euros, such currency shall be converted into euros as calculated at the actual average rates of exchange for the pertinent quarter or calendar year to date, as the case may be. Such payments shall be without deduction of exchange, collection or other charges.
7. Invoicing
7.1 When a deposit is payable upon signature of the order form, the Service will only start after receipt of a proof of payment of the deposit by the Service Provider.
7.2 The Price is payable by the Client to the Service Provider in accordance with the terms and conditions of the order form and the invoices issued by the Service Provider. The Service Provider's invoices are payable at the Service Provider's registered office within fifteen (15) business days from the date of the invoice.
7.3 Any dispute regarding a request for payment must be made in writing within fifteen (15) calendar days following the date of issue of the invoice. The dispute does not release the Client from its obligation to pay. Any invoice issued by the Service Provider that is not contested within fifteen (15) calendar days is deemed to be accepted as to its amount by the Client and cannot subsequently be contested.
7.4 The amount of any invoice not paid in full on the due date shall be increased by operation of law and without prior notice of default by interests calculated on the rate of one (1) percent per month, each month commenced being considered as a full month. Interests are capitalised annually.
7.5 Without prejudice to the other provisions, if an invoice is not paid within thirty (30) days of its date of release, the Service Provider is entitled to increase the amount of the invoice by fifteen (15) percent as compensation for administrative costs, with a minimum of two hundred (200) euros, unless the Service Provider is able to establish, in accordance with the Belgian law of 2 August 2002, the costs actually incurred to recover its invoice.
7.6 Similarly, without prejudice to the foregoing provisions, non-payment of an invoice on its due date authorises the Service Provider to suspend the performance of its Services for the Client, to terminate any assignment in progress and/or to withhold any order until full payment of all debts, including compensation, late payment interest and reminder costs. Failure to pay an invoice on the due date shall render all sums owed by the Client to the Service Provider immediately payable, regardless of the payment terms previously granted. Non-payment of the Service Provider's invoices on the due date shall constitute a serious breach of contract attributable to the Client and shall entitle the Service Provider to terminate the Agreement at the Client's expenses. In this case, the Client shall owe the Service Provider a lump-sum compensation equivalent to one hundred percent of the amount due under the order form, without prejudice to the Service Provider's right to claim additional compensation if it establishes that the loss actually suffered as a result of the Client's serious breach and the termination of the Agreement exceeds the amount of the lump-sum compensation.
7.7 The Client hereby agrees that the Service Provider is authorized to set off any debt owed by the Client to the Service Provider against any claim that the Client may have against the Service Provider.
7.8 The Client authorises the Service Provider to send all invoices electronically.
8. Confidentiality
8.1 The Receiving Party may use Disclosing Party’s Confidential Information only in connection with the performance of this Agreement. Except as expressly provided in this Agreement, the Receiving Party shall not disclose Disclosing Party’s Confidential Information, in whole or in part, directly or through an intermediary, on any medium whatsoever, to any third party to this Agreement without the Disclosing Party’s prior written consent. The Receiving Party shall take all reasonable measures to avoid disclosure, dissemination, reverse-engineering or unauthorized use of Disclosing Party’s Confidential Information, including, at a minimum, those measures it takes to protect its own confidential information of a similar nature.
8.2 Each Party undertakes to ensure that the Confidential Information of the other Party will not be copied, reproduced or duplicated in whole or in part where such copies, reproductions or duplications have not been specifically and previously authorised in writing by the Disclosing Party unless this is necessary for the performance of this Agreement or imposed by legal or administrative obligations.
8.3 The Receiving Party shall restrict the possession, knowledge and use of Confidential Information to its employees, contractors, professional advisors, Affiliates and entities controlled by it (collectively, “Personnel”) who have a need-to-know Confidential Information in connection with the Purpose. Such Personnel shall be informed by the Receiving Party of the confidential nature of such information and shall be directed by the Receiving Party, and shall each expressly agree, to treat such information as confidential in accordance with this Agreement. The Receiving Party shall be fully responsible for any breach of this Agreement by its Personnel. Each Party may disclose the Confidential Information to its parents and Affiliates, provided that such parents and Affiliates are under obligations relating to the Confidential Information at least as restrictive as those contained in this Agreement
8.4 All Confidential Information shall remain the exclusive property of the Disclosing Party. The Disclosing Party does not grant any express or implied license or right to or under any patents, trade secrets, copyrights, trademarks or other Intellectual Property Rights in its Confidential Information. All rights in the Confidential Information are reserved by the Disclosing Party.
8.5 The Receiving Party shall notify the Disclosing Party immediately upon discovery of any unauthorized use, access or disclosure of Confidential Information or any other breach of this Agreement. The Receiving Party shall cooperate with the Disclosing Party in every reasonable way to help the Disclosing Party regain possession of such Confidential Information and prevent its further unauthorized use or breach of this Agreement.
8.6 The obligation of confidentiality established by this Agreement shall continue to apply, even after the end of this Agreement, in respect of each Confidential Information until such time as such Confidential Information becomes generally known to, or readily accessible to, third parties to this Agreement, provided that no breach of the confidentiality obligations established by this Agreement shall be attributable to the Party relying on it in respect of such information.
8.7 Upon termination of this Agreement or upon written request by the Disclosing Party, or at the Disclosing Party’s request, the Receiving Party will: (a) cease using the Disclosing Party’s Confidential Information and (b) destroy the Disclosing Party’s Confidential Information (in any form including without limitation, and all copies, notes, summaries, excerpts or extracts) within 7 business days of receipt of request.
8.8 Notwithstanding the foregoing, the Receiving Party may retain, subject to the terms of this Agreement, a copy of the Confidential Information as required for compliance with its internal recordkeeping requirements
8.9 Confidential Information does not include any information that (i) is or becomes publicly available without breach of this Agreement, (ii) can be shown by documentation to have been known to the Receiving Party at the time of its receipt from the Disclosing Party and such prior knowledge can be proven by documented evidence, (iii) is received from a third party who, to the knowledge of the Receiving Party, did not acquire or disclose such information by a wrongful or tortious act, (iv) can be shown by documentation to have been independently developed by the Receiving Party without reference to any Confidential Information, or (v) constitutes suggestions, comments or other feedback provided by the Receiving Party to the Disclosing Party with respect to the Confidential Information, but only to the extent that such information does not contain any Confidential Information.
8.10 It is understood that the exceptions to the obligation of confidentiality do not apply to very specific Confidential Information which, at the time of its communication between the Parties, was only vaguely suggested without precision in a broader information in the public domain.
8.11 The obligations of confidentiality established by this Agreement shall not apply in the event of a dispute relating to this Agreement and only in respect of Confidential Information the use of which by one of the Parties is useful in the context of the dispute.
8.12 The obligations of confidentiality established by this Agreement shall not apply in the case of audits of public administrations. The Receiving Party may disclose Confidential Information as required to comply with legal process or binding orders of governmental entities that have jurisdiction over it, provided that the Receiving Party discloses only such information as is required by the governmental entity.
8.13 The Receiving Party acknowledges that disclosure or use of Confidential Information in violation of this Agreement could cause irreparable harm to the Disclosing Party for which monetary damages may be difficult to ascertain or an inadequate remedy. The Receiving Party therefore agrees that the Disclosing Party shall have the right, in addition to its other rights and remedies, to seek injunctive relief for any violation of this Agreement.
8.14 To enforce the terms of this Agreement, a Party may seek all remedies available to it under applicable laws, including but not limited to, seeking to stop the other Party from continuing to disclose its Confidential Information in violation of this Agreement. In addition, in countries where equitable remedies are available, the Receiving Party agrees that the unauthorized disclosure of the Disclosing Party’s Confidential Information may cause irreparable injury to the Disclosing Party and that, in the event of a violation or anticipated or threatened violation of any of Receiving Party’s obligations hereunder, the Disclosing Party may have no adequate remedy at law and shall therefore be entitled to seek enforcement of such obligation by specific performance, or appropriate temporary or permanent injunctive or mandatory relief in any court of competent jurisdiction.
9. References
9.1 As long as the Client does not withdraw his consent, the Service Provider is entitled to indicate to its clients, prospects and other business relations and any third party that the Client is one of its clients and the Service Provider is entitled to use the Client’s name and logo in its reference list and on the Service Provider’s website. The Service Provider will immediately cease to indicate that the Client is one of its Clients and to use the Client's name and logo upon the Client's first request.
10. Intellectual property rights
Articles 10.1 to 10.4. (included) hereunder are applicable in all cases.
10.1 Unless otherwise agreed in writing between the Parties in the order form, any and all Intellectual Property Rights held and/or controlled by either Party before the Effective Date and/or developed and/or acquired outside of the framework of this Agreement will remain the exclusive property of said Party and no rights will be granted to the other Party on such Intellectual Property Rights.
10.2 Unless otherwise agreed in writing between the Parties in the order form, any assignment or license of any Intellectual Property Right from the Service Provider to the Client shall only enter into force and take effect upon the full payment of any and all amount due by the Client to the Service Provider pursuant to the order form. Unless otherwise agreed in writing between the Parties in the order form, the Client is always obliged to mention “Designed by Futurewave” on any product in which the Creations of the Service Provider are incorporated and this in letters that are not smaller than 40% in size of the largest trademark appearing on the product.
10.3 Pursuant to the provisions of this Agreement, the Service Provider hereby grants to the Client a single, transferable, worldwide, perpetual and non-exclusive license on all Intellectual Property Rights the Service Provider has or will have throughout the world during the performance of this Agreement related to Generic Creations. This license is limited to the sole use of those Generic Creations for the Client’s own business purposes but covers all uses of such Generic Creations including but not limited to their use, manufacture, distribution, adaptation, translation, communication to the public and disclosure.[A8] [A9]
10.4 Notwithstanding anything to the contrary in the Agreement, it is expressly agreed that where the Service Provider markets software or services provided by third parties, the terms and conditions applicable to such third parties’ Intellectual Property Rights in software and services shall be those established by the third parties and the Client expressly declares to be in compliance with them. The Client releases the Service Provider from any liability and the Client indemnifies the Service Provider against - and the Client shall hold the Service Provider harmless from - any and all claims, remedies and indemnities arising out of or in connection with any breach of the terms and conditions applicable to such third parties’ software and services by the Client.
10.5 If the order form does not mention that Intellectual Property Rights in the Specific Creations are assigned or licensed to the Client, articles 10.6 to 10.20 will apply to the Intellectual Property Rights in the Specific Creations.
Articles 10.6 [A10] [A11] hereunder is solely applicable when the order form specifically mention that the Service Provider’s Intellectual Property Rights in the Specific Creations are assigned to the Client.
Articles 10.7 to 10.20 [A12] [A13] (included) hereunder is solely applicable when the order form specifically mention that the Service Provider’s Intellectual Property Rights in the Specific Creations are licensed to the Client
10.7 Pursuant to the provisions of this Agreement, the Service Provider grants to the Client a license in and to all Intellectual Property Rights on any and all Specific Creations (the “License”).
10.8 Unless otherwise agreed in writing between the Parties in the order form, the License is (i) a simple and non-exclusive licence, (ii) a worldwide license, (iii) granted for a duration of ten (10) years as of the date of its entry into force, (iv) not transferable, (v) not sub-licensable, (vi) for the sole business purposes of the Client, allowing the Client, for the entire world and all languages, to manufacture, reproduce, represent, distribute, commercialize and sell the Specific Creations, on any media.
10.9 All rights not expressly granted to the Client in this Agreement are reserved to the Service Provider. Without prejudice to the other restrictions applicable under this Agreement or the applicable law, the Client shall not: (i) use any part of the Specific Creations to develop any products or services or create derivative works of the Specific Creations; (ii) make any translation, adaptation, arrangement and any other modification of the Specific Creations; (iii) replace any part of the Specific Creations by the other components that would circumvent the licensing fees that should be paid to the Service Provider; (iv) not by itself or with others participate in any illegal, deceptive, misleading or unethical practices and activities, which may be detrimental to the Service Provider or the Specific Creations.
10.10 This Agreement does not entitle the Client to any upgrades or maintenance, technical, or other services for the Services (other than those mentioned in the order form), which the Serviced Provider does not warrant the availability and which the Client may be required to purchase separately as the case may be. The License does not allow the Client to adapt or modify the Specific Creations. The Service Provider will not automatically adapt, modify or update the Specific Creations. Adaptations, modifications or updates of the Specific Creations may be made available for the Client against payment provided that the Service Provider and the Client mutually agree on such adaptations, modifications or updates in a new order form.
10.11 The License granted under this Agreement does not entitle the Client to any rights to patents, copyrights, trademarks, service marks, trade secrets, confidential information or any other rights or license with respect to the Specific Creations than those expressly granted under this Agreement. The Client shall not remove or modify any copyright symbols, trademarks, labels, property notices and technical protection measures on any and all copies of the Specific Creations.
10.12 The License granted by the Service Provider is of an intuitu personae nature, so that it may not, under any circumstances, be transferred to a third party, nor may it be considered as part of the Client's assets, be exploited by a court-appointed administrator and/or be the subject of a contribution to a company.
10.13 If the Client learns of an infringement, unauthorized use, misappropriation or ownership claim or threatened infringement or other such activity by a third party with respect to any Intellectual Property Rights related to the Specific Creations, (an “Infringement”), the Client shall promptly notify the Service Provider in writing and shall promptly provide the Service Provider with available evidence of such Infringement. The Service Provider has the right, but not the obligation, to institute, prosecute, and control any action or proceeding with respect to Infringement of any Intellectual Property Right related to the Specific Creations. The Client agrees to fully cooperate with the Service [A14] [A15] Provider in the prosecution of any action against an infringer but Client shall not be liable for any legal fees or other expenses related thereto. Any damage award or recovery resulting from such legal proceedings shall be the property of the Service Provider.
10.14 In consideration of the License granted in relation with Specific Creations, the Client shall pay the Service Provider a royalty as a percentage of Net Sales of all Specific Creation sold during the term of the license granted by the Service Provider to the Client. For purposes of calculation of the royalty, the Client shall be deemed to have made a sale of a Specific Creation when it could recognize or accrue revenue for such transaction under generally accepted accounting principles. The royalty percentage shall be equal to five (5) percent of Net Sales unless otherwise agreed in writing between the Parties in the order form.
10.15 For purposes of this Agreement, the first “calendar quarter” shall cover the period from the entry into force of the License through March 30, June 30, September 30 or December 31 of the same year, the closest date as of the entry into force of the License being applicable.
10.16 The license fees (royalties) under this Agreement shall be paid fifteen (15) days after the last day of each quarter of the calendar year, i.e., the 15th day of April, July, October and January. The payment of license fees is due at these times in full on sales of the Specific Creations during the calendar quarter immediately preceding the payment date. The Service Provider will have the right to accrue at one percent (1.0%) per month (12% per annum) for any monies due and not paid in accordance with this Agreement, as well as any collection costs and related attorney’s fees.
10.17 The Client will maintain any books and records relating to the Net Sales in accordance with IFRS and generally accepted accounting principles, consistently applied.
10.18 Upon request of the Service Provider, the Client shall provide the Service Provider with copies of any relevant summarised audit reports and/or certifications reasonably required by the Service Provider to verify the Client’s compliance with this Agreement ("Audit Information"). The Service Provider acknowledges and agrees that the Audit Information constitutes confidential information of the Client and the Service Provider undertakes to maintain the strictest confidentiality of the Audit Information. The Client will answer all reasonable questions that the Service Provider may have in relation to the Client’s compliance with the calculation and payment of the royalty due on Net Sales.
10.19 The Service Provider is entitled to take the necessary measures to verify that the Client complies with its obligations regarding the royalties due under the Agreement, and that the Client has taken the necessary measures to comply with the Agreement. The Client undertakes to make available to the Service Provider all information and assistance necessary to demonstrate compliance with the Client’s obligations of payment under this Agreement and authorises the Service Provider to have checks, including on-site inspections, carried out by an independent auditor appointed by the Service Provider in order to confirm the Client’s compliance with its obligations of payment under this Agreement and the Client undertakes to collaborate in such checks. The Client shall be entitled to make the access of the independent auditor appointed by the Service Provider to its premises and information conditional upon the prior signature of a confidentiality obligation identical to the confidentiality provision established by this Agreement by the independent auditor providing that his report may only reveal relevant information relating to compliance of the Client with its obligation to pay the royalties under this Agreement.
10.20 The Service Provider’s right of audit is subject to the obligation to notify the Client in writing at least two weeks in advance of any such audit. All costs related to such an audit shall be borne by the Service Provider unless the audit reveal that the Client did not comply with its payment or did not maintain its books in accordance with generally accepted accounting principles, in which case the Client will reimburse all costs related to the audit to the Service Provider.
10.21 Without prejudice to other applicable sanctions and remedies, the Service Provider may suspend or terminate the License, immediately and without notice or compensation, if the Client does not strictly comply with its obligation to pay the royalties to the Service Provider or with its obligation to maintain its books and records in accordance with generally accepted accounting principles.[A16] [A17]
11. Feedback
11.1 If the Client provide the Service Provider with any comments, bug reports, feedback, enhancements, or modifications proposed or suggested by the Client for the Creations (“Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary the Client may include in any accompanying communication), and the Service Provider shall have the right to use such Feedback at its discretion, including, but not limited to the incorporation of such suggested changes into the Creations or any other hardware, software or services from the Service Provider. The Client hereby grant the Service Provider a perpetual, irrevocable, transferable, licensable, sub-licensable, non-exclusive license without license fees under all rights necessary to so incorporate and use Client’s Feedback for any purpose, including to make and sell products and services. Feedback shall not be considered Confidential Information and may be used for any purpose. There shall be no obligation to provide compensation for use of Feedback.
12. Sale of materials
12.1 Where the Services include the supply of material to the Client, delivery shall be made to the place agreed in the order form; if such place has not been agreed, delivery shall be made to the Service Provider's head office.
12.2 The materials delivered to the Client shall be deemed to have been approved by the Client within five (5) calendar days of delivery at the latest, unless the Client notifies the Service Provider of a specific and detailed complaint before the expiry of this period by registered letter. The approval shall cover all apparent defects and lack of conformity, i.e. all defects which it was possible for the Client to detect at the time of delivery or within five (5) calendar days after delivery by means of a careful and serious inspection.
12.3 The scope and duration of the warranty offered by the Service Provider is limited to that of the manufacturer's warranty for the material delivered. The duration of the warranty shall not exceed six (6) months as of the delivery date of the material. No warranty is given in the event of the sale of second-hand goods. The application of any warranty is subject to the following cumulative conditions: (i) the defect renders the material, to a significant extent, unfit for the use for which it is normally intended or for a special use expressly mentioned in the particular conditions of sale; (ii) the material has been properly assembled and placed; (iii) the material is used under normal conditions; (iv) the instructions for maintenance and use communicated at the time of delivery or mentioned in the documentation accompanying the delivery have been complied with; (v) the material has not been modified, dismantled or repaired by the Client or by a third party; and (vi) the Client has notified the claim relating to the hidden defect to the Service Provider by registered letter within a maximum period of one (1) month after he has noticed the hidden defect.
12.4 Where the Service Provider's warranty on the material is applicable, the warranty is limited, at the Serviced Provider's option, to the free repair or replacement of the defective material. Under no circumstances shall the Client be reimbursed for the material. In no event shall the Service Provider's liability (for visible damage or hidden defects) exceed the invoiced value of the material concerned. The Client shall return the defective goods to the Service Provider for repair or replacement at the Client’s expense and risk. The material must be returned carriage paid and is returned without carriage paid by the Service Provider.
12.5 Any claim by the Client shall not suspend the payment of any amounts due by the Client to the Service Provider and the acceptance of the return of the material by the Service Provider shall not constitute any acknowledgement of error or damage.
12.6 All material sold to the Client must in principle be collected by the Client from the Provider's premises within the period specified by the Provider. If the Service Provider agrees to deliver the material to the Client, such delivery shall be made in accordance with the terms and conditions freely determined by the Service Provider and the goods shall be transported at the Client's expense and risk, except in the event of wilful misconduct or gross negligence on the part of the Service Provider or its employees. The cost of transporting the material shall, where applicable, be invoiced separately to the Client. Any delivery period agreed by the Service Provider is given as an indication only and compliance with the delivery period shall not constitute an obligation of result on the part of the Service Provider. The Service Provider shall only be liable for failure to meet the delivery deadline in the event of gross negligence or wilful misconduct on its part. Failure to meet the delivery deadline does not entitle the Client to refuse to accept the material .
12.7 The transfer of risk in respect of the material sold by the Service Provider to the Client shall be effective upon signature of the relevant purchase order. The transfer of ownership of the material sold by the Service Provider to the Client shall occur on the date of full payment of the price of the material concerned and its accessories (any costs, interest and penalties) by the Client. Prior to the transfer of ownership, the Client expressly agrees not to sell, assign, pledge or otherwise dispose of the material sold by the Service Provider to the Client. The Service Provider may invoke this retention of title clause eight days after sending a formal notice to pay by registered letter with acknowledgement of receipt, addressed to the Client and remaining without effect. The material concerned must then be returned to the Service Provider immediately and on request. The Client shall nevertheless remain solely liable for the loss of the material sold, even in the event of Force Majeure.
12.8 It is expressly agreed between the Parties that the Client shall hold the Service Provider harmless from any and all direct or indirect liability in respect of the material delivered by the Service Provider to the Client, up to the maximum permitted by law.
13. Non-POACHING
13.1 For the duration of this Agreement and for a period of twelve month[A18] [A19] [A20] [A21] s from the end of this Agreement, the Client shall refrain from, directly or through an intermediary, on its own account or on behalf of third parties, poaching, attempting to poach, using the services of, recruiting, any member of staff and any independent collaborator of the Service Provider during all or part of the duration of this Agreement. This provision shall not apply to prohibited acts resulting from conventional recruitment advertisements of a general nature which do not specifically target any member of staff or independent collaborator of the other Party
13.2 In the event of a total or partial breach of the prohibition of poaching during or after termination of the Agreement, the Client shall be liable to pay the Service Provider a minimum lump-sum compensation of thirty thousand euros (EUR 30.000,-). [A22] [A23] [A24] [A25] This lump-sum compensation and its payment shall in no way prejudice the right of the Service Provider to start any proceedings for defence of its interests and to claim compensation in excess of thirty thousand euros (EUR 30.000,-) from the Client, provided in this latter case that the amount of damage caused to the Serviced Provider as a result of the breach of the non-poaching provision exceeds the amount of the lump-sum compensation owed to the Service Provider under the Agreement.
14. Liability
14.1 The Service Provider's liability is limited to that imposed by mandatory law. The Service Provider shall only be liable in the event of gross negligence or wilful misconduct attributable to the Service Provider. In all cases, the Client waives the Service Provider's liability and the Service Provider is released from any liability for the Service after the Client has tested and validated the Service.
14.2 The Service Provider provides the Service “as is”. The Service Provider does not make any legal, express or implied warranties with respect to the Service, including, but not limited to, warranties of quality, suitability or performance. The Client assumes all risks associated with the use or operation of the Service. The Service Provider shall in no event be held liable for any damage of any nature whatsoever (in particular loss of profits, loss of information, loss of data, business interruption, personal injury and invasion of privacy, loss of earnings, decrease in turnover or any increase in the Client's overheads) and shall not be liable for any pecuniary or other loss, related to this Agreement or to the inability to use the Service, even if the Service Provider had been informed of the risk of such damage occurring. No advice or information obtained by the Client from the Service Provider shall create any warranty not expressly stated in this Agreement.
14.3 The Service Provider makes no warranty of any kind, express, implied, statutory or otherwise, with respect to the Service. Except as expressly provided in this Agreement, the Service Provider excludes to the fullest extent permitted by applicable law all warranties relating to the Service, whether in fact or in law, express or implied, including implied warranties of quality, fitness for a particular purpose, non-infringement and all warranties arising from any use of the business.
14.4 Any claim by the Client must reach the Service Provider within fifteen (15) calendar days from the date of the event giving rise to the claim. Complaints that are well-founded and made in a timely manner by the Client shall give rise to repair, completion or replacement (in whole or in part) by the Service Provider, without the Service Provider being liable to pay any further compensation.
14.5 If, for any reason whatsoever, the Professional Liability Insurance of the Service Provider does not cover the liability of the Service Provider where liability can be established and repair, replacement or completion is not possible, the Service Provider shall personally cover the damage, but up to the amount of the sums actually paid to the Service Provider by the Client in the three (3) months prior to the occurrence of the loss.
14.6 The Service Provider shall not be liable for any damages arising from the Client's failure to comply with this Agreement. Furthermore, the Service Provider shall not be liable for defects that have been caused directly or indirectly by the Client or a third party, regardless of whether such defects were caused by fault or negligence.
14.7 Neither of the Parties may be held responsible for delays or problems in the execution of this Agreement if they are the result of Force Majeure.
15. Warranty
15.1 The Services delivered to the Client shall be deemed to have been approved by the Client within five (5) calendar days of delivery at the latest, unless the Client notifies the Service Provider of a specific and detailed complaint before the expiry of this period by registered letter. The approval shall cover all apparent defects and lack of conformity, i.e. all defects which it was possible for the Client to detect at the time of delivery or within five (5) calendar days after delivery by means of a careful and serious inspection.
15.2 The Client is obliged to subject the Services to a thorough inspection within forty-eight (48) hours of receipt. In any event, the Client shall lose the right to claim any defect or non-conformity if (i) the Client has not informed the Service Provider of the defect or non-conformity in a detailed email within twenty-four (24) hours from the time the Client noticed or should have noticed the defect, or (ii) one (1) month has elapsed from the date of the final invoice, whichever is shorter.
15.3 Where the Service Provider's warranty (apparent or latent defects) applies to the Service, the warranty shall be limited, at the Service Provider's option, to the free repair, completion or replacement of the defective Service, without the Service Provider being liable for any additional compensation. In no event shall the Service Provider's liability (in respect of apparent or hidden defects) exceed the invoiced value of the Service concerned.
15.4 Any claim by the Client shall not suspend the payment of any amounts owed by the Client to the Service Provider.
15.5 Except in the event of wilful misconduct or gross negligence attributable to the Service Provider and without prejudice to the legal guarantee applicable to the products, the Client shall hold the Service Provider harmless and indemnify the Service Provider against all actions, claims or legal proceedings of any nature whatsoever which are directed or brought by a third party against the Service Provider and which are a direct or indirect consequence of or related to work or services performed or to be performed by or on behalf of the Service Provider for the Client, or in any other way, would be related to an assignment entrusted by the Client to the Service Provider, including, without limitation, any damages, costs or indemnities which would be charged to the Service Provider and related to such action, claim or suit. If the Client has itself paid such damages in this context, the Client may not at any time seek reimbursement from the Service Provider for any such payments made by the Client.
16. Force majeure
16.1 In the event of one or more events constituting Force Majeure or another cause of exoneration affecting one (or more) obligation(s) of one or both Parties to this Agreement, the Party(ies) is (are) required to notify the other Party of the occurrence of a cause of exoneration as soon as it (they) become aware of it (them), preferably by registered mail or, failing that, by any appropriate means.
16.2 The notification must indicate the nature, the starting date, the presumed end date and the presumed impact of the Force Majeure or other cause of exoneration on the performance of the obligations of the Party affected by it. As soon as the cause of exemption has ended, the Party whose obligations have been affected must notify the other Party without delay of the precise date of the end of that cause of exemption and its actual impact on performance and attach to it the elements of proof thereof.
16.3 If the Service Provider is unable to perform its obligations under the Agreement due to Force Majeure, the performance of the Agreement shall be suspended. The suspension of the performance of this Agreement shall automatically entail the postponement of all the deadlines by a number of calendar days equal to the number of calendar days covered by the period of suspension.
16.4 If the suspension of the performance of this Agreement due to Force Majeure lasts for more than forty-five (45) business days, each Party may terminate the Agreement by registered letter, without notice and by operation of law and without any damages or compensation being due to the other Party.
17. Personal data
17.1 The Client authorises the Service Provider to process the personal data that the Client communicates to the Service Provider. The Client acknowledges that the processing of the personal data it communicates to the Service Provider is necessary for the performance of the Agreement. The purpose of the processing is to perform the Agreement and to comply with any regulatory or legal obligation of the Service Provider. The personal data communicated by the Client to the Service Provider and the persons concerned may fall under any category. The Client authorises the Service Provider to use sub-contractors for the processing of personal data. The Service Provider will retain personal data for the duration of the Contract in accordance with applicable legal requirements, and only as long as necessary for the purposes described herein or as long as required by law or to support or defend against potential legal claims. Any questions or requests relating to the personal data provided to the Service Provider may be made by contacting the Service Provider as available on the Service Provider’s website (https://www.futurewave.design).
17.2 The Client shall hold the Service Provider harmless and indemnify the Service Provider against any and all claims and recourse by third parties directly or indirectly relating to the processing of the personal data referred to herein that the Client has communicated to the Service Provider.
18. Independence
18.1 This Agreement does not create any link of authority or subordination between the Parties. The Service Provider shall perform the Services independently and on an autonomous basis. This Agreement does not constitute a contract of employment within the meaning of the Belgian Law of 3 July 1978 relating to employment contracts and does not establish any joint venture and no form of association or company or commercial partnership (within the meaning of the Belgian Book X[A26] [A27] of the Code of Economic Law) between the Parties.
18.2 Each Party expressly undertakes to scrupulously comply with the legal provisions applicable to it and, in particular, the tax and social security regulations applicable to itself, its management body or bodies and its staff.
19. Assignment
19.1 The Service Provider has the right to assign this Agreement in whole or in part as well as the rights and obligations arising from the Agreement to any third party without the Client's consent. In particular, the Service Provider is entitled to assign any claim it holds against the Client and such assignment shall result in the Client's obligation to pay in the hands of the new holder of the claim. The Service Provider has the right to subcontract all or part of the Services to subcontractors without the Client's consent.
19.2 The Client may not assign the Agreement in whole or in part, whether free of charge or against payment, to any third party. Any assignment of all or part of the Agreement made by the Client in breach of this provision shall be null and void and shall not be enforceable against the Service Provider.
20. Entire agreement
20.1 This Agreement and the order form constitute the full text of the agreement between the Parties having the same object. It supersedes all other agreements, proposals, offers or declarations of intent previously made by either of the Parties, the general terms and conditions of the Client, as well as any other communication between the Parties concerning the content of the Agreement.
20.2 Any adaptation or modification to this Agreement shall constitute an amendment to the Agreement and shall be binding on the Parties only if such adaptation or modification has been made in writing and has been approved in writing by each Party. Tolerance, even if prolonged, shall in no case be deemed to constitute a tacit amendment to this Agreement.
20.3 Any waiver by a Party of all or part of its rights or interests under this Agreement must be in writing. The failure of a Party to assert any of its rights under this Agreement or to insist on compliance with the provisions of this Agreement by the other Party shall not be construed as a waiver of that right or as acceptance of the breach of the Agreement.
20.4 This Agreement forms an integral part of the offers or any agreement concluded between the Service Provider and the Client.
20.5 This Agreement takes precedence over the Client's general or special terms and conditions, even if the latter provide that they apply exclusively. Any deviation from this Agreement is permitted provided that the Service Provider gives its prior written consent.
20.6 Any order form shall be deemed to include, to the extent applicable, the terms and conditions set forth in this Agreement and any document attached to or referenced in the order form unless otherwise provided in the order form. In the event of any inconsistency between a provision of the Service Provider's general or special terms and conditions and a provision of the order form, the relevant provision of the order form shall prevail over the relevant provision of the Service Provider's general or special terms and conditions. The order of precedence of the contractual documents agreed between the Parties shall be as follows: (1) the order form takes precedence over, (2) any special terms and conditions and takes precedence over (3) this Agreement. All these documents apply in full to the contractual relationship between the Service Provider and the Client except and only to the extent that there is an incompatibility between them, in which case the above-mentioned order of precedence applies to the provision(s) concerned.
20.7 The failure of the Service Provider to implement any of the provisions of this Agreement shall in no event be deemed or construed to be either (i) a waiver of its subsequent application, or (ii) a waiver of the application of the other provisions of this Agreement by the Service Provider.
21. INVALIDITY
21.1 The invalidity or unenforceability of any provision of this Agreement shall in no way affect the validity and enforceability of the remaining provisions of this Agreement, unless the provision concerned was decisive for the willingness of one of the Party to enter into this Agreement.
21.2 Any provision of this Agreement that is declared null and void or inapplicable will remain in force to the maximum extent permitted by law and the Parties undertake to replace any part of the provision or any provision of this Agreement that is invalidated by another provision of equivalent economic effect.
22. Notifications
22.1 Except where the Agreement requires the use of registered mail, any notification to be made in accordance with this Agreement shall be considered valid if it is made either by hand delivery to the persons concerned with signature for acknowledgement of receipt, or by fax or e-mail with confirmation, or by registered letter to the addresses mentioned in the preamble of this Agreement. Each Party is obliged to inform the other Party of any change of address which may occur during the term of this Agreement.
23. Governing law and jurisdiction
23.1 This Agreement will be governed by and interpreted according to Belgian law, without reference to its conflict of laws rules. No effect shall be given to any other choice of law or to any conflict-of-laws rules or provisions (Belgian, foreign or international), that would result in the application of the laws of any country other than Belgium.
23.2 All disputes arising from or in connection with this Agreement will be settled definitively by the courts and tribunals of Brussels. The language of the proceedings shall be French.
23.3 Notwithstanding article 23.2, either Party may validly bring any proceedings for provisional or protective measures or injunctions before any court of competent jurisdiction.
24. Acceptance
24.1 The Client is deemed to have accepted these general terms and conditions by signing the Service Provider's order form, which can validly be done by exchanging emails or by any online signature service. When the Service Provider has communicated these general terms and conditions to the Client, the fact of entrusting a service to the Service Provider shall be deemed to imply acceptance of the general terms and conditions for that service and subsequent services from the Service Provider. If the Client has only been notified of the general terms and conditions after having entrusted the Service Provider with the service, the Client's acceptance shall be deemed to result from the absence of withdrawal of the service after such notification.
24.2 The Client expressly acknowledges that these terms and conditions constitute a general framework applicable to all other services entrusted to the Service Provider.