1. General section
Article 1 – Scope
1.1 These General Terms and Conditions shall apply to every agreement Tenco DDM BV, with VAT No. BE 0734.618.612, including all its branches, enters into with its customers for the provision of services.
1.2 The Customer expressly accepts to have read the substance of these General Terms and Conditions and agrees to be bound by them in its contractual relationship with Tenco DDM, to the exclusion of any other (general) terms and conditions, such as the Customer’s own purchasing or invoicing terms and conditions.
1.3 These General Terms and Conditions consist of a General Section which shall apply to every agreement, and a Specific Section which, depending on the type of services Tenco DDM provides, may additionally apply to (parts of) the agreement between the Customer and Tenco DDM. In the event of any conflict between the conditions set forth in the Specific Part and those set forth in the General Part, the former shall prevail.
Article 2 – Amendments to the General Terms and Conditions
2.1 Tenco DDM expressly reserves the right to amend these General Terms and Conditions from time to time.
2.2 The Customer shall be considered to have agreed to the amended General Terms and Conditions if it has not objected to the amended General Terms and Conditions taking effect within 30 days from the date they become applicable. In the event of an objection, the previous version of the General Terms and Conditions shall continue to apply to the contractual relationship between that Customer and Tenco DDM, but Tenco DDM shall be entitled, within 30 days after receiving the objection from the Customer, to immediately terminate the cooperation with the Customer with the right to invoice the services already rendered at that time and without owing the Customer any damages.
Article 3 – Conclusion of the Agreement
3.1 An agreement between the Tenco DDM and the Customer shall be formed when the Customer has accepted a quotation prepared by the Tenco DDM, either by signing it or by confirming it by e-mail. The offer to contract and the specific conditions to this end stated in the Quotation shall only be valid and may only be accepted within the time period stated in the Quotation or, in the absence thereof, at least within 60 days after Tenco DDM delivers the Quotation to the Customer.
3.2 Every amendment which the Customer might propose or request to a quotation issued by Tenco DDM shall be considered a rejection of the quotation and a new contract offer by the Customer. Such an offer to contract shall only lead to a contractually binding agreement for the Tenco DDM if it has expressly accepted it.
3.3 If the Tenco DDM does not provide the Customer with a quotation for the delivery of certain services, the Agreement shall be formed at the time the Tenco DDM commences the work at the Customer’s request.
Article 4 – Execution of the Agreement
4.1 Each obligation which the Tenco DDM enters into with regard to the Customer shall be a best efforts obligation, unless otherwise agreed in writing. If the Tenco DDM has agreed a period with the Customer to provide certain services, this period shall not be binding for the Tenco DDM, but it shall nevertheless exert its best efforts to provide the agreed services within this period.
Article 5 – Duration and termination of the Agreement
5.1 Unless otherwise agreed in writing between Tenco DDM and the Customer, every agreement which Tenco DDM and the Customer enter into shall have an initial term of one month. Unless Tenco DDM or the Tenco DDM Customer terminates the agreement at least two weeks before the end of the initial one-month period, the agreement shall be automatically renewed for a new one-month period. With the exception of ‘one-off’ services.
5.2 Every agreement which Tenco DDM and the Customer enter into shall be terminated by operation of law in the event of the other party’s bankruptcy.
5.3 Termination of agreement due to non-payment: provisions from Article 9.4 General Terms and Conditions
Article 6 – Limitation of liability
6.1 Except for its intentional or gross negligence, Tenco DDM shall not be liable for any fault or negligence in the execution of the agreements with the customer.
The Customer shall be solely responsible for the correct and timely delivery of its own information and shall indemnify Tenco DDM against third-party claims ensuing from the Customer’s use of the services provided by Tenco DDM and/or from non-compliance by the Customer with any obligation ensuing from the Agreement between Tenco DDM and the Customer. This indemnification obligation shall survive termination of the Agreement.
6.2 Tenco DDM shall only be liable vis-à-vis the client for actual and proven damage arising from its obligations in connection with the services provided, to the exclusion of any other implicit or non-written obligations.
6.3 Tenco DDM shall under no circumstances be liable for indirect damage of the Customer such as, but not limited to, loss of turnover and profit, loss of customers, loss of market value and reputation, loss of information and data, ….
6.4 Tenco DDM’s liability shall in any case be limited to the amount, excluding VAT, equal to the value of the invoices from the past three months. This limitation shall apply per damage case or per series of damage cases resulting from the same cause, but shall, in any case, not exceed the limits of the liability insurance concluded by the Tenco DDM.
6.4 Tenco DDM shall not be liable if it is prevented from performing its obligations by force majeure. Force majeure shall include, but not be limited to: social conflicts, interruptions of the electricity network (including blackouts), interruptions of the telecommunication network, unavailability of web hosts or social media, …..
6.5 All of the Customer’s legal claims against Tenco DDM, including claims for damages, shall expire one year after the claim in question arises.
Article 7 – Intellectual property rights
7.1 All intellectual property rights regarding the services provided by the Tenco DDM to the Customer, such as designs, design, texts, layout, software, source codes, programs, documentation and all other things which have been developed and/or used by the Tenco DDM in executing the Agreement with the Customer or which arise from it, shall be held solely by the Tenco DDM or by a supplier with which the Tenco DDM has made arrangements.
7.3 The Tenco DDM shall warrant to the Customer that it is entitled to grant this right of use and shall fully indemnify the Customer against any claims which third parties might assert against the Customer in this regard.
7.4 Subject to Tenco DDM’s prior written permission, the Customer undertakes to refrain from making objects to which an intellectual property right has been created through the delivery of services public in whole or in part, or making them available to a third party, or reproducing or marketing them in any manner.
Article 8 – Processing of personal data
8.1 In connection with Tenco DDM’s services to the Customer, the Customer may provide Tenco DDM with personal data (e.g., e-mail lists) which are protected under the Act of 8 December 1992 on the protection of privacy in relation to the processing of personal data (or a similar foreign law). The Customer acknowledges that it is solely responsible for processing these personal data within the meaning of this law and shall indemnify Tenco DDM against any claims which the person concerned might assert against it or against any sanctions which might be imposed on Tenco DDM by the authorities in connection with the personal data processed by the Customer.
8.2 Tenco DDM expressly undertakes to keep the personal data provided by the Customer to perform its services strictly confidential and to exercise the greatest care in keeping them secure. Nor shall the Tenco DDM make any other use of the personal data provided by the Customer.
Article 9 – Payment terms
9.1 Unless otherwise agreed, invoices are payable within 30 days of the invoice date. Invoices are delivered to the customer electronically but can also be delivered by post by simple request.
9.2 If the Customer does not notify Tenco DDM of its protest concerning the invoice within 7 working days after it has been sent, it shall irrevocably and fully accept the invoice and the amounts and services stated therein.
9.3 If the invoice remains unpaid on the due date, the customer shall be liable, ipso jure and without notice of default, for contractual interest on arrears at the rate determined by the Minister of Finance pursuant to Article 5 of the Act of 2 August 2002 on combating late payment in commercial transactions. In that case, the customer shall also be liable for a fixed compensation of 10% of the invoice amount, with a minimum of EUR 50.
9.4 As soon as one invoice remains unpaid on its due date, all invoices shall be immediately payable, including those for which the due date has not yet been reached. If an invoice remains unpaid on its due date, Tenco DDM shall also be entitled to suspend all its performance until all due and payable invoices have been paid in full and, if necessary, it may terminate the Agreement with immediate effect without owing the Customer any damages if the delay in payment continues for more than 30 days.
Article 10 – Non-exclusivity and non-winning
10.1 Unless otherwise agreed between the Tenco DDM and the Customer, the conclusion of an agreement between the Tenco DDM and the Customer shall not mean that the Tenco DDM, within the Customer’s area of activity, may only provide services to the Customer. the Customer expressly acknowledges that the Tenco DDM is free to provide services to (even direct) competitors of the Customer. It shall be the Customer’s sole responsibility to ascertain, prior to entering into an agreement with Tenco DDM, if necessary, whether Tenco DDM also provides services to competitors to be identified by the Customer.
Article 11 – Transfer of agreements
The Customer shall not be permitted to transfer its contractual obligations towards Tenco DDM, either in whole or in part, to a third party without Tenco DDM’s prior consent.
Article 12 – Nullity of a clause
If one or more provisions of these General Terms and Conditions should be invalid, this shall not affect the other provisions of the General Terms and Conditions, which shall continue to apply.
Article 13 – No waiver
If Tenco DDM should not immediately invoke one of the possible remedies which these General Terms and Conditions or the applicable law offer it, this shall not imply a waiver of such a possibility.
Article 14 – Notifications
14.1 Any notice or communication as provided for in these General Terms and Conditions may be validly given in writing (e.g. by ordinary post, by registered mail, by fax, by carrier), or electronically by e-mail. E-mail notifications concerning Tenco DDM may be valid if they are sent to mobius@Tenco DDM.be. Notices sent to any other e-mail address (such as an employee of Tenco DDM) shall only be valid if the recipient has expressly confirmed receipt. E-mail notifications concerning the Customer may be valid if they are sent to the e-mail address the Customer has indicated to Tenco DDM or via the e-mail address Tenco DDM usually uses for its contacts with the Customer.
14.2 The Customer undertakes to always inform the Tenco DDM immediately of any change in name, legal form, postal address, electronic address, etc. The Tenco DDM may validly provide notice of such a change until such time as it has done so. Until such notice has been given, Tenco DDM may validly provide notice to the Customer’s data previously known to it.
Article 15 – Applicable law and competent courts
15.1 The contractual relationship between Tenco DDM and the Customer shall be governed exclusively by Belgian law.
15.2 Only the courts and tribunals of the jurisdiction in which Tenco DDM’s registered office is located shall have jurisdiction to rule on any dispute concerning the contractual relationship between Tenco DDM and the Customer.
2. SPECIFIC PART
A. Development, management and maintenance of websites
Article 16 – Liability
16.1 The Customer acknowledges that, for hosting the websites it develops, or for the websites the Customer develops and which were developed by third parties, Tenco DDM must call upon an external provider for hosting services. Tenco DDM shall not be liable for the possible unavailability of the hosting or any other error or omission of this external provider as a result of which the customer’s website would be unavailable or non-functional or as a result of which the customer would suffer any damage.
Tenco DDM shall, however, transfer to the Customer any right of indemnification which it might have with respect to this external provider so that the Customer may directly sue the external provider if necessary. At the Customer’s request, Tenco DDM shall inform the Customer of the conditions applicable to the services provided by the external provider.
16.2 At the Customer’s request, Tenco DDM may take over the management of a website which has been developed by a third party. In that case, Tenco DDM shall not be liable for possible errors committed by this third party in developing this website (e.g. programming errors) and which would lead to faulty functioning of the website during the management observed by Tenco DDM (e.g. loss of data, security leaks, error messages).
16.3 At the Customer’s request, Tenco DDM may connect a Web Project to an existing third-party system (e.g., an ERP or inventory management system). Tenco DDM shall undertake to establish this link at the time the Project is delivered, provided it has sufficient information to ensure this link.
Tenco DDM shall not be liable if, at a later time, the connection between the Web Project and the third party’s system does not function properly due to a change in this system of which it was not informed in time. Tenco DDM shall in any case not be liable if the Web Project cannot function due to the unavailability of this third-party system for whatever reason.
16.4 In developing websites, Tenco DDM shall observe the rules of art in order to provide the necessary security measures. The Tenco DDM shall not be liable if the website should nevertheless become unavailable or non-functional due to a hacking or attempted hacking. The Customer acknowledges that it shall, if necessary, insure itself against the harmful consequences which such (criminal) acts would have for its business processes, managed Customer and personal data and other data.
B. Marketing and media
Article 17 – Confidentiality
17.1 In addition to what has already been stated in the General Section about keeping personal data confidential, Tenco DDM undertakes to keep strictly confidential the confidential information it receives from the Customer concerning the Customer’s essential business processes and strategies. the Customer undertakes to inform Tenco DDM clearly if the information it communicates to Tenco DDM is such confidential information which must be handled with special care.
17.2 If the Tenco DDM also acts for a competitor of the Customer, the Tenco DDM shall, in addition, see to it that – to the extent possible – other persons work for both Customers.
Article 18 – Liability
18.1 At the Customer’s request, Tenco DDM may manage the Customer’s presence on social media (e.g., Twitter, Facebook) by posting messages there according to agreements made. the Customer acknowledges that Tenco DDM is thereby dependent on the conditions and availability of these social media, for which it cannot bear any responsibility.
Tenco DDM takes the greatest care to place these messages correctly, but is not liable for possible consequences of (briefly) incorrectly placing messages, such as image damage or claims from third parties.
18.2 In the context of e-commerce or mailing assignments which Tenco DDM performs or organises for the Customer, Tenco DDM shall take the greatest care to execute these assignments correctly. However, Tenco DDM shall not be liable for the possible consequences of any errors or omissions in carrying out these assignments.
Article 19 – Advance payment
19.1 At the Customer’s request, Tenco DDM may increase its visibility on the Internet by purchasing media space from various providers (e.g., through Google or Facebook Advertisements). In deviation from the normal payment rules, the Customer undertakes to pay the budget made available to Tenco DDM for providing these services in full in advance, since Tenco DDM must pay for this media space immediately to the various providers.