1. General
1.1. The following general terms and conditions (hereinafter referred to as “Terms and Conditions”) apply to and are an integral part of all offers, proposals, bid letters, quotations, arrangements and agreements (hereinafter collectively referred to as the “Agreement”) entered into between DIANA SOCIALS, the trade name of BRYTONN BV, with registered office at Winningweg 20, 3540 Herk-de-Stad, Belgium, registered in the Belgian Crossroads Bank of Enterprises under company number 1002.758.482, RLE Antwerp, section Hasselt (hereinafter referred to as “DS”) and any legal entity (hereinafter referred to as the “Client”) for the provision of specific Services as detailed in the Agreement. For the purpose of these Terms and Conditions, “Services” means the services promoted by DS on its website https://www.dianasocials.com/ and as described more specifically in the Agreement.
1.2. By accepting any offer from or placing any order with DS for the performance of Services, the Client acknowledges and confirms its prior knowledge and acceptance of these Terms and Conditions and relinquishes application of its own terms and conditions, however worded. DS reserves the right to change its Terms and Conditions subject to prior written notification to the Client.
2. Conclusion of the Agreement
2.1. All indications in offers or quotations, as well as in the annexes thereto, such as images, drawings, and other data, are only approximate and cannot be construed as implying any obligation of DS.
2.2. Specific (technical) requirements set by the Client must be made in writing by the Client and must always be confirmed and accepted in writing by DS.
2.3. Obvious errors or mistakes in DS’s offers or quotes release it from its performance obligation and/or any obligation to pay damages arising therefrom, even after conclusion of the Agreement.
2.4. The Agreement shall only be considered to have entered into between the parties upon signature of an order form by both parties.
2.5. DS reserves the right to suspend the provision of Services if the Client’s account with DS shows a negative balance or if, in the reasonable opinion of DS, there is a deterioration in the creditworthiness of the Client. In such event, DS reserves the right to demand from the Client such guarantees as DS may deem proper to ensure the full performance by the Client of its engagements under the Agreement. Should the Client fail to meet any demand for such guarantee, DS shall have the right to terminate the Agreement or any part thereof without any compensation being due to the Client. Such termination shall not in any way limit or prejudice DS’s other rights for damages and interests.
2.6. The Client shall be responsible for the accuracy of any order submitted by itself. The Client shall also be responsible to give DS any necessary information relating to the services within a sufficient time to enable DS to perform the Services in accordance with these Terms and Conditions.
2.7. The Client agrees that changes required over and above the estimated work, or in addition to the agreed scope, will be charged separately.
2.8. DS reserves the right to sub-contract any Services that DS has agreed to perform for the Client as it sees fit.
3. Fees and payment
3.1. In consideration for the performance of the Services by DS under the Agreement, the Client shall pay to DS the agreed fees in accordance with the Agreement. The fees exclude direct taxes (VAT, sales tax, etc.), travel expenses, transport cost, insurance costs, environmental fees, etc., unless explicitly stated otherwise in writing.
3.2. Charges for any additional services requested during the project, that are out of scope, will become fully payable at the time of estimate or quotation acceptance by the Client.
3.3. The amounts presented by DS in the order are based on the prices, exchange rates, wages, taxes and other price-related factors that applied at the time of the order. If any of said price-related factors should change after the order has been issued, DS is entitled to adjust the agreed fees accordingly. DS shall inform the Client thereof without delay. If, pursuant to the present article, an increase in the fees is implemented by DS and such increase exceeds 10% of the total agreed amount for the order, the Client is entitled to terminate the Agreement in writing within eight (8) calendar days after being informed by DS of the increase in the fees.
3.4. Unless agreed otherwise, all invoices issued by DS shall be payable within the term stated on the invoice. Under no circumstances shall the Client be entitled to offset any amounts due by DS against any amounts charged by DS.
3.5. DS shall be entitled to invoice at any time, including by way of advance invoices. If advance payment is refused, DS is entitled to rescind the Agreement.
3.6. Invoices that have not been disputed by registered mail within eight (8) calendar days following their transmission shall be deemed to have been accepted unreservedly by the Client.
3.7. Payment shall be made by transfer into the account number indicated on the invoice under mention of the reference number.
3.8. DS is entitled to suspend the performance of the Services until all payments owed by the Client to DS have been made in full, including any interest amounts.
3.9. In the event of non-payment by the Client on the due date indicated on the invoice, all amounts owed by the Client become due and payable, regardless of any payment conditions agreed earlier between the Parties. In the event of late payment, even partial payment, the Client shall automatically and without the need for a letter of formal notice owe interest on the outstanding invoice amount at an interest rate of 10% as from the due date of the invoice. The interest is calculated from day to day. Payment in arrears by the Client shall first be deducted from the interest amounts being due before being deducted from the capital amounts. In the event of late payment, the Client shall also owe a fixed compensation of 10% of the outstanding invoice amount, with a minimum of €250.00, to cover, among other things, the recovery costs incurred by DS.
3.10.Late payment, incomplete payment or non-payment of any single invoice due shall render any other invoices that are not yet due for payment, immediately due and payable.
3.11. The Client shall be deemed to have performed its payment obligations when the respective sums due have been received by DS’ bank account in immediately available funds. The amount due shall be transferred, unless otherwise agreed, by wire transfer into the bank account mentioned on the front of the invoice.
4. Term, termination and cancellation
4.1. The Agreement shall commence on the date of signature of the order by the party signing last in time and shall remain in force for the term stated in the order. The Client’s failure to duly and/or punctually perform any of its obligations under the Agreement shall entitle DS, without any obligation to pay compensation and without prejudice to any other rights it may have, to terminate the Agreement in part or in full by means of written notification to the Client and/or to demand immediate payment in full of any outstanding amounts. If the Agreement is terminated by DS pursuant to this article, the Client shall pay DS at DS’s request (and within fourteen days of such request) 30% of the fees under the respective order. The Parties confirm that this amount represents a genuine pre-estimate of DS’s loss. This paragraph is without prejudice to DS’s other remedies and its right to prove and claim any higher damages.
4.2. DS is entitled to terminate the Agreement with immediate effect, without any obligation to pay compensation and without prejudice to any rights it may have, in the following non-exhaustive events:
4.2.1. Client acts in material breach of any provision of the Agreement;
4.2.2.Client becomes insolvent or declares bankruptcy, is being dissolved or enters into liquidation;
4.2.3.Client files a voluntary petition for proceedings in temporary relief (or composition) of creditors (“gerechtelijke reorganisatie”);
4.2.4. bankruptcy of Client is being applied for or a composition of creditors is offered;
4.2.5.any asset of Client is seized.
4.3. Accepted orders are binding for the parties. In case the Client nonetheless cancels an accepted order, it must submit a written request to DS. DS is entitled to refuse the request for cancellation at its sole discretion. In the event the cancellation request is refused, the Client is obliged to perform its obligations under the order and pay the fees for the Services included in the order. If DS agrees in writing to the cancellation request, DS shall be entitled to a fixed compensation of 30% of fees under the respective order (without deduction of any advance payments already made), without prejudice to DS right to prove any higher damage or to demand performance of the Agreement. This paragraph is without prejudice to DS’s other remedies and its right to prove and claim any higher damages.
4.4. Any advances paid shall in any event remain vested in DS and shall not be refunded.
5. Force Majeure
5.1. Neither party shall be liable to the other party for any event of Force Majeure or shall be obliged to perform its obligations under the Agreement. The party claiming Force Majeure (hereinafter: “Affected Party”) shall give written notice to the other party without unreasonable delay after the Affected Party first became aware (or should have become aware) of any such event of Force Majeure and the delay in performance of the Agreement caused by such event. Failure to give such notice within fourteen (14) calendar days of the event of Force Majeure shall preclude the Affected Party from claiming that an event of Force Majeure has occurred. “Force Majeure” shall mean any cause beyond a party’s reasonable control and rendering the execution of the Agreement impossible or unreasonably burdensome. That includes without limitation, any of the following: malfunctioning, interruption or failure of the internet or internet connections, act of God, war, acts of terrorism, epidemic, pandemic, government order, fire, flood, explosion, civil commotion or industrial dispute or strike, extraordinary targeted attacks from hackers, general power outage affecting not only a party or a general breakdown of the network or infrastructure of a party’s telecom provider, as well as any unforeseeable and uncontrollable circumstance in which the performance of each parties’ obligations under this Agreement becomes impossible or unreasonably burdensome. Force Majeure shall not include any non-observation of financial obligations under the Agreement.
5.2. Any notification pursuant to this article shall include a detailed description of the obligation(s) affected by such event of Force Majeure as well as details of any transitional plans, alternative or other mutually agreed means which the Affected Party may use to minimize the effects of the event of Force Majeure.
5.3. Notwithstanding the foregoing, the Affected Party shall use reasonable endeavors to mitigate the effect of the event of Force Majeure on the performance of its own obligations and shall continue with the performance of the Agreement if it is not terminated when and to the extent that such event of Force Majeure ceases.
5.4. In the occurrence that an event of Force Majeure maintains for a period of more than three (3) continuous calendar months, the parties shall be entitled to terminate the Agreement, as the case may be, by written notice to the other party, without any compensation being due for such termination.
6. Delivery
6.1. DS undertakes its best effort to respect the timings as stipulated in the Agreement, but the Client agrees that – unless explicitly agreed upon otherwise – these timings are non-binding estimate dates. Late provision of the Services shall not result in any right to compensation or cancellation of the Agreement or any right to damages.
6.2. Any estimate of the date by which DS will complete any part of the Services is contingent upon the Client providing complete instructions to DS and fully cooperating with DS. The Client must appoint a person who has complete authority to provide instructions to DS and respond to requests for feedback until DS has ceased providing Services to the Client.
6.3. Unless agreed otherwise in writing, delivery of any materials or deliverables by DS to the Client shall occur according to the applicable ICC INCOTERM (2020) ‘Ex Works’. If the Client refuses to take receipt of the order at the agreed moment, makes such receipt impossible or unreasonably difficult or fails to provide information or instructions required for the delivery, DS is entitled to store the materials and deliverables at the Client’s risk and expense, without prejudice to DS’s right to terminate the Agreement.
7. Complaints
7.1. The Client is obligated to inspect the results of the Services or have them inspected immediately upon delivery. The inspection obligation entails that the Client must thoroughly and accurately check (or have checked) whether the results of the Services comply with the Agreement in all respects.
7.2. Under penalty of invalidity of the complaint, complaints regarding the results of the Services performed by DS must be reported to DS by means of a registered letter or email at the latest ten (10) calendar days after delivery. In the event that no complaint is lodged within the aforementioned notice period, the results of the Services shall be deemed to be accepted by the Client.
7.3. In the event that a complaint by the Client is accepted, DS shall at its sole discretion either: (i) perform the Services again, or (ii) reimburse the Client for the price of the corresponding Services to which the accepted complaint relates. The remedies under this article 10.3 shall be the sole remedies of the Client for defects related to the Services. DS’s liability shall in any event be limited in accordance with article 10 of the Terms and Conditions.
8. Intellectual Property Rights
8.1. All IP to the Services and the materials and results generated from the Services shall remain the exclusive property of DS and/or its licensors. “IP” shall mean all intellectual, industrial and other (property) rights, including but not limited to design rights, copyrights, copyright in computer programs, patent rights, know-how, trademarks, service marks, database rights, design rights, goodwill, protection of confidential information, as well as applications for any of the foregoing and all similar rights recognized from time to time in any jurisdiction, together with all rights to take action in connection with the infringement of any of the foregoing.
8.2. Upon payment of the fees due to DS in accordance with the Agreement, the Client shall be granted a limited, non-transferable, temporary as agreed between Client and DS in writing and non-exclusive right of use of the Services and the materials and results generated from the Services within the framework of the Agreement, solely for the purpose of social media usage and inhouse promotional purposes or as otherwise agreed in writing between the Client and DS. In no event shall the Client be entitled to use any of the IP to the Services and the materials and results generated from the Services for advertisements, offline campaigns or any other commercial usage that is not explicitly agreed upon in writing between the parties.
8.3. The Client shall indemnify and hold harmless DS against all actions, costs (including the cost of defending any legal proceedings), claims, proceedings, damages and negative consequences arising from any (alleged) infringement of any rights of a third party by reason of the Client’s use of the Services and the materials and results generated from the Services.
8.4. In the event of violation of this article 8 of the Terms and Conditions, the Client shall pay to DS a fixed compensation equal to twenty-five thousand (25.000,00) EUR per violation, without prejudice to DS’s right to prove and claim its actual higher damage and any other restoration of rights.
9. Confidentiality
9.1. The Client undertakes not to disclose to third parties, nor to distribute and/or use all information and documents exchanged between the parties, whether orally or in writing, and regardless of the nature of the information or documents, other than in the context of the Agreement. This obligation applies worldwide both during the term of the Agreement, and for a period of five years after the termination thereof. In case of a breach of this article 9 of the Terms and Conditions by the Client, the client shall pay to DS a fixed compensation of twenty-five thousand (25.000,00) EUR, without prejudice to DS’s right to claim a higher compensation if it has suffered a higher actual damage and any other restoration of rights.
9.2. The Client explicitly acknowledges and agrees that DS is entitled to use and exploit any results and materials generated from the Services and the Client’s corporate details and logo for DS’s promotional purposes (including but not limited to photographs, hyperlinks to websites, designs, etc.).
10. Liability and indemnification
10.1. The Client acknowledges and agrees that DS’s commitments under the Agreement are obligations of means (“middelenverbintenis”/”obligation de moyen”). DS performs the Services entrusted to it in accordance with industry practices. By entering into the Agreement, the Client explicitly acknowledges and agrees that DS is entitled to disseminate to the public, whether via the Client’s own (social media) channels or via DS’s (social media) channels, the materials and results generated from the Services. Any objections or requirements related to such disseminations need to be notified in writing by the Client to DS before such disseminations occur.
10.2. DS cannot be held liable under the Agreement to the maximum extent permitted by applicable law and save for cases of intent or gross negligence of DS or its appointees or non-performance of the essential obligations under the Agreement by DS. The total aggregate liability of DS shall in any event be limited to the fees of the Services paid by the Client to DSunder the order (confirmation) that gives rise to DS’s liability. This limitation of liability shall be valid, irrespective of whether the act, omission or negligence is due to DS itself or its personnel or subcontractors, and irrespective of the applicable liability regime, including, without being limited to contractual liability, tort, criminal liability or objective liability.
10.3. DS cannot be held responsible for incidental or consequential damage, including but not limited to injuries, damage to property, financial loss, loss of profit, staff costs, company stagnation costs, damage to third parties, loss of revenue or loss of data.
10.4. DS cannot be held liable for any security breaches, malfunctioning or other defects of any of Client’s (social media) accounts, information or materials used by DS in the performance of the Services. The Client remains fully responsible of implementing adequate technical and organizational security measures in order to prevent any security breaches of its (social media) accounts.
10.5. The Client shall in any event remain fully liable for any and all damages and negative consequences caused by or related to any materials it provides to DS.
11. Non-compete
11.1. The Client and its affiliated companies undertake not to engage in any activities or actions that directly or indirectly compete with the business activities of DS, or to approach the customers or suppliers of DS, during the term of this Agreement and for a period of twelve (12) months after its expiration or termination, within Belgium, without DS’s prior written consent.
11.2. In the event of a breach of the provisions of this article 11 of the Terms and Conditions, the Client shall owe to DS a fixed compensation equal to twenty-five thousand (25,000.00) EUR per infringement if the infringement is not remedied within fourteen (14) calendar days after notice of default by DS and this in so far as the infringement is subject to remediation. The fixed compensation is without prejudice to the right of DS to claim a higher compensation or any other restoration of rights. Payment of the aforementioned compensation shall in no way relieve Client or its affiliated companies of further compliance with the non-compete clause as stipulated in this article 11 of the Terms and Conditions.
11.3. Client acknowledges that this non-compete clause and the associated compensation are reasonable and necessary to safeguard the legitimate interests of DS. If the above non-compete clause would exceed the legal limitations in terms of duration, territory and/or object, Client shall not be entitled to claim its nullity but the non-compete clause shall be reduced to the maximum applicable proportions
12. Governing law and competent courts
12.1. This Agreement is subject to Belgian law. The United Nations Convention on Contracts for the International Sale of Goods (Vienna Conventions of 1980) shall not apply, and no effect shall be given to any other choice of law or conflict of laws rules or provisions (Belgian, foreign or international) that could cause the laws of any jurisdiction other than Belgium to be applicable.
12.2. In the event of a dispute arising out of or in relation to any provision or obligation under this Agreement, the Client and DS agree to engage in good faith discussions in an attempt to pursue an amicable solution. Only if no such solution or accord is reached, either party is entitled to bring the dispute before the competent court. During the good faith discussions, the Client and DS agree to continue performance of the Agreement under the terms and conditions set out herein.
12.3. All possible disputes that may arise between the Client and DS will be submitted exclusively to the courts of Antwerp, section Hasselt (Belgium).
13. Miscellaneous
13.1. The parties to the Agreement are independent contractors and the Agreement cannot be construed as giving rise to any other relationship (joint venture, agency, trust or partnership).
13.2. The Agreement represents the entire understanding and agreement between the parties with respect to the subject matter thereof and, unless expressly provided otherwise, shall supersede any prior agreements and undertakings between the parties with respect to that subject matter.
13.3. The invalidity of unenforceability of any one provision or clause of these Terms and Conditions or the Agreement shall not result in the invalidity or unenforceability of any other provision of these Terms and Conditions, the Agreement or of these Terms and Conditions or the Agreement as a whole. In the event that the validity or enforceability of any such provision is jeopardized or challenged, the Client and DS undertake to do whatever is reasonably necessary or advisable, including effecting such applications or filings, or restructurings of the provision in question, so as to be able to lawfully maintain such provision in full force or to substitute another provision that has economically substantially the same effect for the Client and DS.
13.4. Deviations, additions or modifications of these Terms and Conditions or other conditions mentioned on forms or documents issued by the Client, are not applicable unless expressly agreed in writing by DS. DS cannot be considered to tacitly agree to any terms and conditions. In the event that any other terms and conditions are explicitly made applicable between the Client and DS in writing, the Terms and Conditions shall remain valid in a supplementary way.
13.5. Except as expressly provided otherwise in these Terms and Conditions, neither any failure nor any delay by DS in exercising any right, power or privilege under these Terms and Conditions or the Agreement, shall operate as a waiver of such right, power or privilege, and no single or partial exercise of any such right, power or privilege shall preclude any other or further exercise of such right, power or privilege or the exercise of any other right, power or privilege.
13.6.The parties acknowledge and agree that, when processing personal data within the framework of the Agreement, they shall always act in accordance with the principles and rules set out in Regulation (EU) 2016/679 of 27 April 2016 on the protection of individuals with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC, as well as any additional applicable national and/or European regulations on the processing of personal data.
13.7. The parties agree that (i) electronic signatures qualifying as an advanced or qualified electronic signature under the eIDAS Regulation (Regulation (EU) No. 910/2014) or (ii) scans of the signed signature page of this Agreement delivered by e-mail in .pdf format shall have the same evidential value as an original paper copy with a handwritten signature.
