1.1 These general terms and conditions apply to all quotations prepared by and agreements entered into by Mindspeller BV (BE 0629.858.018), with its registered office at Duigemhofstraat 101, 3020 Herent, Belgium. Hereinafter referred to as the ‘Supplier’.
1.2 Purchase or other conditions of the Client are not applicable, unless expressly accepted in writing by the Supplier.
Formation of the Agreement
The Agreement between the Supplier and the Client is established when the Client accepts a prepared quote by signing, whether or not digitally, by any other confirmation by the Client or after the request of the Client to start the work. Quotes are valid for 30 days.
Obligation of Efforts
3.1 The commitments undertaken by the Supplier are defined contributions, not defined benefits. Timelines are always indicative.
3.2 The Client is responsible for the correct and timely provision of information, cooperation, and input concerning the services to be provided or already delivered by the Supplier.
Duration and Termination of the Agreement
4.1 Each Agreement has a variable duration determined at the start but can be terminated at every milestone built into the project.
4.2 Each Agreement is terminated by operation of law in the case of bankruptcy of one of the parties. However, services already provided remain claimable.
Engagement of Third Parties
5.1 For certain services, the Supplier collaborates with specialized partners (e.g., for hosting). A description of the guarantees and the liability of these partners is available upon request.
5.2 Upon the Client’s request, the Supplier can take over the management of services or software provided or developed by a third party. The Supplier can never be held responsible or liable for any errors committed by this third party.
5.3 At the request of the Client, the Supplier can link its solutions to other systems managed by the Client or a third party. The Supplier can never be held responsible or liable for unavailability or errors directly or indirectly caused by such external systems.
6.1 The services related to software development and design are considered provisionally delivered and accepted as soon as they are offered to the Client for testing or revision. This provisional acceptance becomes final without written objection after 6 weeks, which means that additional changes will be invoiced additionally by the Supplier.
7.1 The Client must comply with applicable legal provisions and any contractual obligations and indemnifies the Supplier for all direct and indirect damage and costs caused by any violations committed by the Client, as well as claims from third parties. This indemnification remains applicable even after the termination of the Agreement.
7.2 In case of misuse of the services by the Client or third parties, the Supplier reserves the right to temporarily or permanently deny the Client access to the services.
7.3 The Client expressly acknowledges that the Supplier can only be held liable for damage as a direct result of deliberate and attributable fault by the Supplier.
7.4 The Supplier is not liable for indirect damage to the Client such as, but not limited to: loss of revenue and profit, loss of customers, loss of market value and reputation, loss of information and data, … In any case, liability is limited to the amount equal to the invoice amounts of the last three months (excluding the amounts invoiced to the Client for the execution of the assignment by third parties as referred to in article 11.4 of these General Terms and Conditions) or the re-performance of the services, at the Supplier’s discretion. The amount will never exceed the limits of the liability insurance taken out by the Supplier.
7.5 All claims arising on the part of the Client against the Supplier, including claims for damages, expire three months after the claim in question arose.
8.1 The Supplier is not liable in the event that it is prevented from executing the Agreement due to force majeure, or other circumstances beyond its control, such as social conflicts, disruptions to the electricity network (including blackouts), disruptions to the telecommunications network, unavailability of web hosts or social media, …
8.2 The Client acknowledges that regarding software development, a flawless operation of a computer configuration (the combination of hardware and software) can never be guaranteed and that this, as well as certain cases of force majeure or malicious intent (hacking, denial of service, …) among others can result in the loss of (even all) programs and/or data of the Client. The Client therefore commits to taking the necessary precautions, in their opinion, to limit the consequences of such circumstances. Moreover, the Client expressly acknowledges that they can insure against the harmful consequences that such events would have on their business processes, managed client and personal data, and other data.
9.1 All rights to works developed by the Client, before or outside this Agreement, remain the property of the Client.
9.2 All rights to works developed by the Supplier, before or outside this Agreement, remain the property of the Supplier at all times.
9.3 The Supplier grants the Client a non-exclusive and non-transferable right to use all works developed by it for the Client under this Agreement, including works of third parties for which the Supplier has obtained a user right and which are essential for
the performance of the services under the Agreement. The Client can only use these works for internal company purposes, unless expressly agreed otherwise in writing. The Client is not allowed to multiply, distribute, make available to the public, or otherwise exploit these works, without prior written permission from the Supplier.
9.4 In the case of the development of software, websites, … a source code escrow agreement can be concluded at the request of the Client, under conditions determined in mutual consultation.
10.1 These General Terms and Conditions are governed by Belgian law. Any dispute between the parties will be settled before the competent court in Leuven.
10.2 The nullity of one of the clauses in these General Terms and Conditions does not affect the validity of the other clauses, even if the null clause would be of essential importance.
10.3 The Supplier reserves the right to modify these General Terms and Conditions at any time, with due respect for a reasonable notice period towards the Client.
10.4 The Client agrees to treat all knowledge, information and data from the Supplier, in whatever form, as confidential and not to disclose it to third parties, or use it for any purpose other than the performance of the Agreement. This obligation remains in force even after the termination of the Agreement.
10.5 In the case of contradictions between different documents that form part of the Agreement, the following ranking applies: first the special conditions agreed between the parties in writing, then these General Terms and Conditions, and then the documents to which these General Terms and Conditions refer.
10.6 All notifications and communications between the parties concerning the Agreement will be made in writing, by registered mail or by e-mail with acknowledgment of receipt.
means, with respect to a Party, any person, partnership, corporation, organization or entity that directly or indirectly
means any day of the week, except for Saturdays, Sundays and public holidays.
means between 09.00-18 hour on Business Days;
“Change of Control”
means any occurrence having as a result that any person other than the person or persons having Control on the date of signing of the Agreement, acquire the Control, whether alone or acting in concert with other parties;
shall have the meaning as set out in the designated article below;
means the ownership of more than half the capital, business or assets of a Party or the power to exercise more than half the voting rights of a Party or the power to appoint more than half the members of the board of directors of a Party or sufficient authority to direct, directly or indirectly, the adoption and/or execution of the policies, management or operations of a Party by any means whatsoever;
“Controller Personal Data”
means any Data that is Personal Data processed by Mindspeller on behalf and under the instructions of Customer under the Agreement;
means Customer’s usual activities related to marketing communication management of (i) trademarks it controls and related marketing communication stimuli it designs (internally and/or externally) and communicates via internal or external channels;
means the Data provided to Mindspeller through the Platform or submitted, uploaded or stored in the Platform by Customer under the Agreement;
means any Data, other than Customer Data;
means any data, information or material regardless of its form or the medium in which it is comprised, submitted, uploaded or stored in the Platform;
means Mindspeller’s then-current manuals and technical materials, in such medium as Mindspeller elects that are delivered by Mindspeller to Customer under the Agreement for the purpose of the setup and/or use of the Service;
means the date indicated in the Order Form;
means any extension to the Service Package;
“ Mindspeller Technology”
means all of Mindspeller’s proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) used by Mindspeller in the Platform;
“EU Data Protection Laws”
means EU Directive 95/46/EC as amended, replaced, or superseded from time to time, including by the EU General Data Protection Regulation 2016/679 and laws implementing or supplementing this regulation;
means EU General Data Protection Regulation 2016/679; means these general conditions including its Schedules hereto;
“Intellectual Property Rights”
means, without limitation, and in particular with regard to the Platform and Mindspeller’s products and services, all rights throughout the world in the nature of intellectual property rights including copyright, trademark, service marks, trade and business names, domain names, goodwill, registered designs, patents, database rights, topography rights and rights in know-how and trade secrets, whether registered or unregistered and including applications for the grant of any of the foregoing and all rights or forms of protection having equivalent or similar effect to any of the foregoing; Intellectual Property Rights shall also include the Know-How;
means, in particular with regard to the Platform and Mindspeller’s products and services all technical and processing data, information, specifications, and knowledge of an intellectual or industrial nature, concerning products and/or services, including but not limited to specifications, manufacturing instructions, quality control procedures and other like data;
means the licenses granted by Mindspeller to Customer as defined in this document for use of the Platform, the Service and of the Service Results;
shall have the meaning as given in the designated article below;
means the order form representing a purchase order, evidencing the purchase of the Service specifying, among other things, the subject of the Service (the Service Package chosen) and/or of Additional Services and any specific terms and conditions thereof;
means the Mindspeller proprietary cloud-based platform to which Customer obtains access under the Agreement and via which Mindspeller performs the Service;
means, with respect to a Party or a Party’s Affiliate, its directors, officers, employees, contractors, agents, advisors, counsellors, auditors, accountants or lawyers; in relation to Customer, Representative includes Customer’s Account Manager(s) and User(s);
means one of the Service packages offered by Mindspeller to Customer as set out in the Order Form, defining the scope of the License and the set of rights awarded to Customer under the License and the Service Results that may be obtained through the Service;