General terms and conditions
1. Applicability
All agreements shall be governed by the general terms and conditions specified hereafter, unless otherwise agreed upon in writing between A-Knowledge and the Customer.
2. Quotations and commencement of the agreement
All quotations and prices submitted by A-Knowledge shall be free of engagement until such time as the agreement has been concluded.
The price shall only cover the explicitly itemized work and materials. In the event production or labour costs were to increase between the time the order is placed and the work is carried out, A-Knowledge shall be entitled to forthwith amend its prices once it has notified the Customer to that effect in writing. The Customer, for his part, shall in that event be entitled to, within eight days of having received said written notification, cancel his order in writing without being liable for damages.
Any changes to the order placed shall, save otherwise agreed in writing, be charged for as contract work and at an hourly rate.
All offers and quotations submitted by A-Knowledge shall be valid for 30 days, unless specified otherwise.
3. Duration and termination of the agreement
Unless otherwise agreed at the time of ordering or at the time the agreement is awarded, all agreements are entered into for a period of one (1) year and shall, at the end of each year, be tacitly renewed for a period of one (1) year.
Parties shall have the right to terminate a specific order for a Service by sending a letter to the other Party via registered mail at least three (3) months before the end of the current subscription period of one year.
Either Party may terminate the agreement including all on-going Service, effective immediately, by giving notice in writing via registered mail without liability to the other Party if the other Party is in material breach of this Agreement and, if such breach is remediable, such breach has not been remedied within thirty (30) days of the written notice. Material breaches by A-Knowledge shall include refusal or failure to perform the Services in whole or in part. Material breaches by the Customer shall include: (a) failure to live up to his payment obligations under the agreement if no payment has been made ten (10) days after the date mentioned on a second notice of default which will be sent via registered mail the day after the period of ten (10) days of the first notice as mentioned or (b) refusal or failure, in the reasonable opinion of A-Knowledge, to make proper Service performance or acceptance possible, when the Customer does not cure such failure within the time period after receipt of notice pursuant to this section from A-Knowledge specifying such failure.
4. Prices
All the prices listed in the quotations, including any negotiated prices, shall invariably be deemed to be exclusive of VAT unless otherwise specified.
5. Invoices
Invoices shall be expressed in euros and will be payable on the invoice’s due date and for the full amount. The invoice will take place the month after the Service was provided for the first time. With regard to an additional service, the invoice will take place the month after the additional service was provided. Parties may deviate from this provision after the conclusion of this Agreement, if it is explicitly stipulated by both Parties in writing.
Any invoice not paid on the due date will be increased automatically – and without formal notice – with a flat rate indemnity of 10% and by fixed damages to cover the collection costs, exclusive of the judicial collection costs of 10% which shall amount to no less than € 50.00 per invoice. The aforementioned flat rate indemnity shall apply immediately without prior judicial intervention from the day following the unpaid invoice’s due date.
In the event the Customer disputes an invoice, the undisputed part will in any case be payable on the due date. Any disputes regarding an invoice must be communicated to A-Knowledge via mail at the latest 7 calendar days after the date of the invoice.
A-Knowledge reserves the right to delay the start of the next performance of the Services until all invoices of which the due date has been reached, have been paid in full, unless the Customer can provide evidence showing that he has reasonable grounds to dispute the unpaid invoice. Any risks and/or damages caused by such delay is the Customer’s own responsibility, A-Knowledge cannot be held to compensation for any negative effect due to such delay.
6. Intellectual property rights
A-Knowledge and any third party that he relies on for the performance of the Services remain at all times holder of all their respective intellectual property rights related to the Services, with the exception of all documentation, drawings, sketches or software from the Customer. A-Knowledge grants the Customer a non-exclusive, non-transferable and non-sub licensable right of use for an indefinite period only insofar such right is needed to enjoy the Services in a legitimate and appropriate way and for the purposes indicated by the Customer to A-Knowledge on the date of signature of the agreement and does not infringe upon the intellectual property rights of a third party.
Having regard to the provisions of the preceding provision, the Customer shall not copy, analyse, decompile, make public, distribute, transfer to third parties, or change any content encumbered with intellectual property rights of A-Knowledge or the third parties A-Knowledge relies upon.
The Customer grants A-Knowledge permission to use his logos, brands and/or trade names insofar as is needed to personalise the Services upon the Customer’s request.
7. Liability
A-Knowledge is not responsible for any software malfunction that is caused by incompatibility of A-Knowledge’s software with software used by the Customer but not delivered by A-Knowledge. Support for shortcomings in the software of third parties, which is not delivered by A-Knowledge, shall be subject to compensation as agreed between the Parties.
No Party shall be exempt from liability for any shortcoming in the performance of its obligations under this Agreement in the event of gross negligence, wilful misconduct or fraud of that Party.
The Customer must notify A-Knowledge of any damages caused by performance or use of the Services as soon as possible and must take every precaution and/or action to minimize these damages.
A-Knowledge shall only be liable for direct damages caused by any shortcoming in the performance of his obligations under the agreement where such shortcoming is caused by his grave error or negligence. This liability shall in any case be limited to a maximum of the amount received by A-Knowledge in the last twelve (12) months on the basis of the Service order for which there was a shortcoming in the performance of A-Knowledge’s obligations.
A-Knowledge shall in principle not be liable for any indirect damages caused by a shortcoming in the performance of his obligations under the agreement, including consequential damages, financial or commercial damages, loss of profit or income, lost opportunities, lost savings, damage due to business discontinuity, reputational damage, damage from legal proceedings initiated by third parties against the Customer.
It is the Customer’s sole responsibility to acquire proper insurance for any liability ensuing from damages to the Customer’s own personnel, property and equipment as a consequence of an accident upon performance of the Services where such accident is caused by unsafe or unsuitable working conditions for which the Customer is responsible.
A-Knowledge shall not be liable for any shortcoming in the performance of his obligations when such shortcoming is caused by incomplete or false information provided by the Customer. The Customer shall indemnify and hold A-Knowledge harmless against any claim brought by a third party who has incurred damages as a consequence of such incomplete or false information, up to a maximum of the amount paid by the Customer for the Services in the last twelve (12) months.
A-Knowledge shall not be liable for the partial, temporary or permanent delay or any shortcoming in the execution of his obligations stemming from the agreement if such is the consequence of force majeure. Force majeure shall be understood at least as: war, terrorism, natural disasters or other phenomena, fire, floods, storms, heavy rains or other precipitations, extreme weather conditions, occupation, society-wide or sectorial strikes, government measures, electrical faults and internet failures beyond the control of A-Knowledge.
A-Knowledge shall not warrant, nor be liable for any shortcoming of products or services of third parties, which A-Knowledge relies upon to provide the Services to the Customer. A-Knowledge shall undertake the maximal warranty and liability that the third party he is relying upon, undertakes.
8. Warranty
The Customer acknowledges that the operation of the Services depends on software and that flawless operation of software at all times and in all circumstances cannot be guaranteed.
A-knowledge warrants that the software has been created and delivered in accordance with the rules of good practice.
There will be a testing phase in which the correct operation of the Services will be tested and accepted by the Customer. When the Services are accepted, a warranty period of fourteen (14) calendar days starts. During that warranty period, A-Knowledge shall remedy all Defects that are to be construed as anomalies that are not in accordance with the agreed specifications and which materially hamper the normal and effective use of the Services.
A-Knowledge will indemnify the Customer against third party claims based on alleged violation of their rights, including intellectual property rights, provided that the Customer immediately reports such claim to A-Knowledge, fully resigns against such claim against A-Knowledge, and provides cooperation and information towards A-Knowledge. The Customer will not enter into any legitimate agreement with any third party or negotiate without express agreement of A-Knowledge.
In the event of an infringement of third party rights, including intellectual property rights, A-Knowledge will have the right to correct the infringement at its sole discretion and choice by (1) obtaining a license for the third party concerned, or (2) the change of infringing parts of the Software, or (3) the replacement of infringing parts of the Software.
9. Jurisdiction and applicable law
Parties agree that any dispute arising out or related to the agreement, will be subject to CEPINA mediation. The seat of the mediation is Brussels and the language of the mediation is English.