GENERAL TERMS AND CONDITIONS OF DELIVERY and INVOICING of MEDIAFORTA BV and MEDIAFORTA SERVICES BV
These General Terms and Conditions apply to all agreements entered into by Mediaforta BV (with registered office at Jachthuislaan 13, 3210 Lubbeek and company number 0888.256.318) and/or Mediaforta Services BV (with registered office at Jachthuislaan 13, 3210 Lubbeek and company number 0475.918.028) (hereinafter jointly referred to as ‘Mediaforta’) as well as to all quotations and deliveries, to the explicit exclusion of all other conditions (including those of the Client).
The application of these General Terms and Conditions is the essential precondition for the establishment of Mediaforta’s agreement. Any derogation from these General Terms and Conditions must be the subject of a written agreement or written confirmation signed by Mediaforta.
Should one or more clauses or part of the clauses not be valid or be expressly waived, this will not affect the validity and applicability of the other provisions. This applies without prejudice to the application of the Special Conditions regarding the use of Mediaforta’s online platforms.
Article 2. Orders/assignments and execution
Unless otherwise agreed in writing, an agreement with Mediaforta is entered into for the fixed term of one year. This agreement will be tacitly renewed each time for a new period of one year unless one of the parties informs the other party by registered letter or by e-mail at least three months before the end of the current year of its decision to allow Mediaforta to carry out the assignment according to the specific needs and wishes of the Client.
If, in the execution of the assignment, Mediaforta must process specific data or information, the Client is obliged to provide this at the time and place specified in the quotation, or as otherwise agreed in writing. Data in digital form will be delivered in the agreed format and on the agreed media. Mediaforta assumes no responsibility for damage or loss during handling of data or information provided by the Client unless the storage of such data and information was explicitly part of the assignment entrusted to Mediaforta in writing.
The Client indemnifies Mediaforta against claims or entitlements from third parties due to infringement of contractual or intellectual property rights of those third parties through the use of the data or information provided by the Client or by awarding the assignment to Mediaforta.
In all cases, Mediaforta retains the right to reuse its know-how and experience for similar assignments. The Client explicitly acknowledges Mediaforta’s right to be assisted by its employees and/or persons appointed for the performance of this agreement and Mediaforta’s right to use the name and logo of the Client as a reference.
Article 3. Prices and quotations
Budgets stated in Mediaforta projects and quotations are given as an estimate or guideline only. Fixed prices can apply only if this is explicitly deviated from in the quotation. Fixed prices apply only to standard assignments that do not involve exceptional difficulties or risk factors.
The budget shown in quotations is based on the then-applicable values of wages, among other items, and is only binding for the performance of work and deliveries described therein and for a period of thirty days as from the date of dispatch. The prices stated are always exclusive of VAT. Mediaforta reserves the right to adjust and increase its prices and rates in case of increase of objective price-determining elements (such as but not limited to taxes, inflation and currency quotations).
Additional work (i.e. all work and deliveries not included in the budgetary part of the quotation and which are required by the Client, as well as unforeseen circumstances during the execution of the services of which Mediaforta was not informed by the Client) will be charged to the Client by Mediaforta on a fair and reasonable basis.
Article 4. Cancellation and breach of contract
Full or partial cancellation of an order accepted by Mediaforta will be considered a breach of contract. In this event, Mediaforta will be entitled to full compensation for costs already incurred and for lost profits. Without prejudice to Mediaforta’s right to demonstrate and claim compensation for additional damage, this full compensation shall be at least 20% of the agreed price in the event of cancellation or breach of contract within two weeks of the date of the order/assignment, and at least 40% of the agreed price in the event of cancellation or breach later than two weeks after the date of the order/assignment.
Mediaforta reserves the right to terminate the agreement automatically and without prior notice of default in the event of bankruptcy, cessation of payments or any major change in the legal situation of its Client, and in the event of non-remediation by the Client of a breach of its contractual obligation within 14 days of having received a registered notice of default.
Article 5. Delivery period and acceptance
Unless otherwise agreed in writing, the delivery period stated in the quotation and/or on any other document signed or issued by Mediaforta is given only as an indication, without any obligation and without constituting an essential condition of the contract, and failure to meet the stated delivery period does not give the Client the right to invoke termination of the agreement, to refuse the delivered works or to claim any damages.
The delivery period will be automatically extended if, in addition to the aforementioned technical details and required specifications, additional information, instructions for use, training, documents or materials for which Mediaforta is not responsible, are not provided to Mediaforta in time.
Even if derogations are agreed in writing and binding delivery deadlines are therefore stipulated, Mediaforta will only be liable for non-compliance with these deadlines for reasons for which Mediaforta is exclusively responsible. The services performed and works are deemed to be accepted at the moment they are completed and delivered and if no explicit and well-founded refusal has been formulated at that time.
Article 6. Force majeure
Cases of force majeure, whether or not they temporarily or permanently make the performance of the agreement impossible, automatically suspend or extinguish Mediaforta’s obligations under this contract and discharge Mediaforta from any liability or damage that may result.
Cases of force majeure are considered by Mediaforta to be wars and similar situations, temporary interruption, failure or malfunction of power supplies, software and hardware, lines rented by the telecom provider and/or supplied equipment, decisions by the public authorities, strikes, floods, fire and any cause beyond the control of Mediaforta that render delivery and/or execution impossible. This list is not exhaustive.
Article 7. Payment conditions
All invoices are payable in cash at Jachthuislaan 13, 3210 Lubbeek, or by transfer to Mediaforta’s bank account number BE60 0015/3452/7670 within 30 days of the invoice date. Mediaforta reserves the right to demand advance payments, the costs of which will be borne by the Client. Late payment interest of 12% (twelve per cent) per year and an automatic penalty of 10% (ten per cent) of the total invoice amount, with a minimum of EUR 150, will be charged on the claimable amounts from the due date automatically and without notice of default.
The amounts paid will always be used to reduce the oldest debt, increased by the accrued interest for late payment and any costs. Non-payment of overdue invoices automatically renders all invoices payable on demand, even if they are not yet due.
The fact that Mediaforta agrees to address its invoice to a party other than the Client in no way implies novation and does not relieve the Client of its obligations towards Mediaforta. Mediaforta.
Article 8. Retention of title
Mediaforta retains ownership of all services delivered by it, including but not limited to the provision of texts, drawings, sound, image and/or photographic material, software, databases, online platforms and all rights thereto until full payment of the price.
This retention of title also applies in all cases of joinder (including but not limited to bankruptcy). All risk of damage or disappearance of the goods are borne by the buyer. Mediaforta reserves the right to keep advance payments to compensate for loss incurred in the event of resale. In the event of bankruptcy or judicial reorganisation of the Client/User, the agreement with Mediaforta will automatically end (as stipulated in Article 4 of these General Terms and Conditions) and Mediaforta will retain the right to take back the goods and the right to full compensation for the services and/or products delivered by Mediaforta, without prejudice to Mediaforta’s right to compensation for damage, lost profits and interest.
Article 9. Complaints
Any objection regarding invoices must be sent by registered letter or fax within eight days of the invoice date, giving reasons, at the risk of forfeiting the right to object. Without prejudice to the foregoing, no complaint for visible defects, missing performances or works, or non-conforming delivery can be formulated after the day of acceptance, as stipulated in Article 5 of these General Terms and Conditions, and any other complaint to be valid must be supported by reasons, contain a detailed description and be communicated by registered letter, by fax or email within 72 hours following the event that could involve the liability of Mediaforta.
If the Client fails to accept delivery or makes delivery impossible, the period of 72 hours starts on the date of delivery or, failing that, on the invoice date. In the absence of a complaint within the aforementioned periods, any (further)—even partial—use shall irrefutably be deemed an act of approval or acceptance.
Article 10. Warranties and liability
Unless otherwise expressly agreed in writing, Mediaforta’s obligations are always obligations of means. In the event of non-conforming delivery and/or service performed and a well-founded complaint, Mediaforta will in no event be liable for more than the replacement, supplementation, adjustment or completion of the service performed or work delivered.
Mediaforta’s liability in principal sum, interest and costs will always be limited to the price of the specific order or the amount covered by Mediaforta’s civil liability policy, whichever is the lower. In no event will Mediaforta be liable for indirect or consequential damage, damage to third parties, or damage or loss due to business interruption or missed savings.
Mediaforta accepts no liability in cases of force majeure (see Article 6) and for damage caused by intent or gross negligence on the part of its employees and appointees, insofar as such damage does not relate to Mediaforta’s essential obligations.
Article 11. Intellectual property rights
All intellectual or industrial property rights to texts, designs, documentation, drawings, sound, image and/or photographic material, software, databases, as well as preparatory materials for the same, developed by Mediaforta or used by Mediaforta without being provided by the Client, belong to Mediaforta or its licensors unless explicitly agreed otherwise between parties.
All intellectual or industrial property rights to works by/created by the Client, prior to or outside of the assignment, remain the property of the Client.
Article 12. Processing of personal data
12.1. Mediaforta processes the contact details (name or description, address, email address, telephone and fax numbers) of Clients and commissioners as well as other data (including language preference, contract information) necessary for the management of its services, including the performance of the agreement with the Clients and the promotion of its services. Mediaforta will use this data exclusively for the purpose of promoting its services. Mediaforta may transfer this data to governmental (local or federal, judicial or administrative) authorities in the context of carrying out their statutory duties or to providers of certain professional services to Mediaforta with whom Mediaforta has concluded a data processing agreement. Mediaforta will not disclose the data to third parties with a view to promoting products or services of other companies.
12.2. The Client has, among other things, the right to access its personal data and the right to make corrections to its data if they are incorrect. More information about the processing of personal data by Mediaforta and the privacy rights of the Client and the retention periods for such data is available in the privacystatement of Mediaforta.
12.3. The Client must immediately inform Mediaforta of any change of name or title, address, email address, telephone and fax numbers and can contact Mediaforta for information about data protection via the following email address: email@example.com or by completing an online form.
Article 13. Loyalty–non-solicitation
Unless otherwise agreed by Mediaforta, the Client shall, both during the term of the agreement with Mediaforta and for 12 months after termination thereof, refrain from, directly or indirectly, for itself or for third parties, approaching Mediaforta’s employees and/or appointees and/or, subcontractors and/or independent workers made known to the Client by Mediaforta, subcontractors and/or independent employees of Mediaforta, i) to approach or to have approached with a view to recruiting them ii) to recruit or attempt to recruit and/or iii) to deploy them in the framework of a cooperation or service, whether of an occasional or long-term nature, organised directly or through third parties, on behalf of the Client. In case of breach of this obligation, the Client will be liable to pay Mediaforta fixed compensation in the amount of six (6) months of the gross salary of the employee recruited or the remuneration of the independent worker, with a minimum of €50,000 per violation, to be paid within 15 days of the notification by Mediaforta, without prejudice to Mediaforta’s right to prove and recover actual damages, and to institute any other action in summary proceedings or through other proceedings, in any relevant jurisdiction.
Article 14. Applicable law and jurisdiction.
All agreements with Mediaforta are governed by Belgian law. Any disputes, whether domestic or foreign, relating to the conclusion, interpretation, performance and/or termination of agreements with Mediaforta will be exclusively settled by the courts of the judicial district of Leuven, Leuven section.