Article 1 Identity of the contracting parties
1.1.These general terms and conditions apply between:
1.1.1.Yzyflow SRL, whose registered office is at Avenue Lavoisier 18A, 1300 Wavre, Belgium, registered with the Crossroads Bank for Enterprises under identification number 1034175693
1.1.2.hereinafter “the Provider”; and
1.1.3.“the Client”, namely any natural or legal person who uses the services of the Provider, as identified in a supply and services agreement concluded with the Provider.
1.2.The Client and the Provider are hereinafter jointly referred to as the “Parties”.
Article 2 Definitions
2.1.As used in the Agreement, the following terms shall have the meanings set out in this Article I, unless the context in which the term is used gives it a different meaning:
2.2.“Agreement” means the provisions of this agreement, as supplemented where applicable by the special conditions expressly agreed between the Parties and by the particulars of the purchase order.
2.3.“YZYflow” means the Provider’s IT platform combining several applications useful for organising public events (concerts, seminars, amusement parks, etc.) such as access control (tickets), management of drinks sales, merchandising, payments, etc., it being understood that these applications may be used separately or jointly, as well as any software of the Provider existing on the date of signature of the supply and services agreement or created after the date of signature of the supply and services agreement and relating to the IT platform.
2.4.“Event” means an event organised by the Client such as a concert, a festival, a conference, an international symposium, an amusement park, etc.
2.5.“Confidential Information” means any information disclosed by one Party to the other Party or obtained by the latter in connection with the Agreement which is not, as such or in the precise configuration and assembly of its components, generally known or readily accessible to persons within the circles that normally deal with the type of information in question, including but not limited to information marked as confidential or equivalent, as well as any document, material, idea, data, drawing or information of such a nature that either Party may reasonably consider it to be confidential and of strategic, economic or security importance to the other Party, even if this has not been expressly stated.
2.6.“Intellectual Property Rights”: any trade mark, trade name or business names (registered or not), copyright (including in software) and related rights, patents, designs and models, database rights and all other intellectual property rights and similar or equivalent rights which currently exist or may be established in the future in any State in the world.
2.7.“Services” means the products and services specified in a supply and services agreement signed by both Parties, including YZYflow.
2.8.“Force Majeure” means facts or circumstances beyond the control of the Party invoking them which could not reasonably have been foreseen or avoided, including by way of example: changes to the regulatory framework, war, civil unrest, destruction of facilities or materials by fire, floods, earthquakes, explosions or storms; labour disputes; epidemics, failure of public services or public carriers, internal or external strikes, social unrest, acts of terrorism, natural disasters, floods, fires, failures of suppliers or subcontractors, power cuts, failures of network providers, general Internet outages, telecommunications service outages.
Article 3 Nature and scope of the Agreement
3.1.The purpose of the Agreement is to set out the terms and conditions under which the Provider supplies the Client with any Service described in a supply and services agreement signed by the Parties.
3.2.Any supply and services agreement drawn up on the basis of the Agreement shall state, where applicable, an order number, the details of the Services, the rates (excluding VAT), the duration of the assignment, the name of the Client’s representative for the purchase order, the billing address and any other special provisions concerning the order.
3.3.No Services other than those expressly mentioned in the supply and services agreement shall be deemed to be included, even tacitly, in the supply and services agreement or in the Agreement. Any Agreement is deemed to be performed at the Provider’s registered office.
3.4.Any order placed with the Provider shall only be binding on the Provider after written confirmation by the Provider. Changes made by the Client to the supply and services agreement or to the Provider’s quotation shall only be valid provided that the Provider has accepted and confirmed them in writing. If payment of an advance is provided for at the time of the order, the Client may not rely on non-payment thereof to be released from its obligations, and the Provider may suspend the provision of the Services until the advance has been paid in full. In the event of late payment of the advance, the Provider shall not be liable for any failure to meet the deadlines for the supply of the Services.
3.5.In the event of unilateral cancellation of an order by the Client (other than cancellation of the Event), a fixed indemnity equal to (i) fifty per cent (50%) of the order amount including VAT shall be automatically due to the Provider without formal notice, provided that the Client has informed the Provider of the cancellation of the order no later than eight calendar days before the start date of performance of the Services, or (ii) sixty-six per cent (66%) of the order amount including VAT shall be automatically due to the Provider without formal notice, provided that the Client has informed the Provider of the cancellation of the order no later than three calendar days before the start date of performance of the Services, or (iii) one hundred per cent (100%) of the order amount including VAT shall be automatically due to the Provider without formal notice where the Client informs the Provider of the cancellation of the order less than three calendar days before the start date of performance of the Services.
Article 4 Term and termination of the Agreement
4.1.The Agreement shall enter into force on the date on which the supply and services agreement is signed by both Parties and, unless the special conditions or the supply and services agreement determine the term of the Agreement, shall remain in force for a period of one year, until such time as the Agreement terminates in accordance with its provisions.
4.2.The Agreement shall be terminated automatically, without notice or compensation, in the event of bankruptcy, a situation covered by the provisions of Book XX of the Code of Economic Law, voluntary or judicial liquidation or an irremediably poor state of affairs of the Client.
4.3.The Agreement may be terminated by either Party without notice or compensation and without prejudice to other remedies in the event of serious fault or breach attributable to the other Party in the performance of its contractual obligations, without prejudice to the payment of damages by the party responsible for the serious fault or serious breach, provided that the Party wishing to terminate the agreement for serious breach has given the Party to which the serious breach is attributed a period of ten (10) working days to remedy the serious breach, starting from the date on which a registered letter is sent to the Party to which the serious breach is attributed, precisely identifying the nature of the serious breach. The mere failure to remedy the serious breach within the aforementioned period of ten (10) days shall automatically entail termination of the agreement at the fault of the Party to which the serious breach is attributed, provided that such breach and its seriousness are established.
4.4.Either Party may terminate the Agreement at any time subject to a notice period of one month. The intention of either Party to terminate the agreement must be notified to the other Party by letter or email no later than sixty days before the Event. The notice period shall begin on the first day of the month following the month in which the notification was sent by one Party to the other Party. In such case, all sums already paid to the Provider shall remain definitively acquired by it.
4.5.Unless otherwise agreed in writing by the Parties, termination of the Agreement and/or of any supply and services agreement for any reason whatsoever shall not release the Parties from their obligations and liabilities arising prior to the date of termination or which, expressly or tacitly, arise or continue to apply after the date of termination of the Agreement and/or of the supply and services agreement concerned. In particular and without limitation, the Client remains bound to pay the Provider the price of all Services performed up to the date on which the Agreement ends.
4.6.The Provider is entitled to invoke the non-payment of an invoice or the failure to settle any problem relating to the Agreement in order to prevent the Client from using all or part of the Services. The Provider is also entitled to suspend the performance of any obligation arising from the Agreement or from a supply and services agreement in the event of non-compliance with the Agreement and the supply and services agreement by the Client.
4.7.Notwithstanding any provision to the contrary in this agreement, the Provider reserves the right to terminate the agreement unilaterally without notice or compensation, after a simple formal notice that has remained without effect for five (5) working days, if the Client fails to pay all or part of the advance payments and/or deposit provided for in the purchase order.
Article 5 Terms of collaboration and warranties
5.1.At the start of any purchase order, the Client shall designate at least one responsible person and at least one substitute duly authorised to bind the Client for the Services. The Provider shall designate at least one responsible person and at least one substitute for complaints, scheduling and general non-technical communication concerning the Services.
5.2.The Services shall be performed in accordance with the Agreement and with the particulars of the purchase order.
5.3.The Agreement does not create any relationship of authority or subordination between the Parties. The Provider shall perform the services entirely independently and on an autonomous basis. The Agreement does not constitute an employment contract within the meaning of the Act of 3 July 1978 on employment contracts and does not establish any joint venture or any form of association or partnership between the Parties. In particular and without limitation, the Client is solely responsible for the event and for compliance with all legal or regulatory obligations of any kind relating to the event, as well as for the payment of all related taxes and duties.
5.4.Each Party expressly undertakes to comply scrupulously with the legal provisions applicable to it and, in particular, with the tax and social security regulations applicable to itself, to its management body or bodies and to its staff.
5.5.The Client shall at all times and free of charge provide the Provider with all required or requested information, documents and assistance useful for the proper performance of the Services.
5.6.The Services shall be provided on the basis of an obligation of means (best-efforts obligation). The Provider undertakes to provide the Services in accordance with the laws and regulations in force, with all the skill, care and diligence reasonably expected of qualified and competent professionals. The fact that the Services do not deliver the expected result shall be considered a valid ground allowing the Client to terminate the agreement and/or the supply and services agreement for serious breach. However, notwithstanding any provision to the contrary in the Agreement, the Provider guarantees the uninterrupted operation of YZYflow throughout the Event.
5.7.Where a strict deadline has been validly accepted by the Provider, the Provider shall no longer be bound to meet that deadline in the following circumstances: (i) the occurrence of a Force Majeure event, (ii) non-compliance with the payment terms by the Client, (iii) modification of the supply and services agreement by the Client, accepted by the Provider, after its validation by both Parties, (iv) any delay attributable to the Client, for example in providing the information requested by the Provider.
5.8.The Provider offers the Client no warranty other than those set out in the Agreement and/or the purchase order.
5.9.The Client is solely responsible for acquiring, servicing, maintaining and updating, at its own expense, its own hardware (including computers and appropriate telecommunications services), which must enable the Client to use the Services. The Client undertakes to ensure that its equipment is adaptable to, compatible with and suitable for the use of the Services, and the Client expressly releases the Provider from any liability in this respect. The Client remains solely responsible for the IT environment and for the material and human resources it deploys to use the Services.
5.10.The Client undertakes not to use all or part of the Services for any illegal or immoral purpose or to organise events that are unlawful, prohibited and/or contrary to public morality and/or public order. The Client undertakes not to use all or part of the Services to disseminate content or information likely to offend public morality or public order, or inciting discrimination, hatred or violence against a person or group of persons. Should the Client fail to comply with the aforementioned prohibitions, the Client undertakes to indemnify the Provider for any damage the Provider may suffer (including the payment of fines or taxes) as a result of one or more breaches of this provision attributable to the Client.
Article 6 Confidentiality
6.1.All Confidential Information communicated by one Party to the other Party or otherwise obtained by the other Party (with the exception of information which is in the public domain other than through a breach of this provision) shall be treated by the other Party as confidential and shall neither be used in any way other than as reasonably necessary for the performance of the Agreement, nor disclosed to third parties without the prior written consent of the Party which disclosed such information.
6.2.Confidential Information may be disclosed to the extent required by law or by any regulatory authority; in such circumstances, the Party concerned shall inform the other Party in writing of the disclosure, where possible before it takes place, so that the other Party has a sufficient opportunity to prevent the disclosure by appropriate legal means. Confidential Information may be disclosed by either Party in order to enforce its rights against the other Party.
6.3.The confidentiality obligation established by this provision shall continue to apply to each item of Confidential Information for as long as it remains confidential, even after the expiry of the Agreement.
Article 7 Intellectual property rights
7.1.Unless otherwise provided in the Agreement or in a purchase order, all intellectual property rights held by either Party prior to the effective date of the Agreement and/or developed and/or acquired independently of the Agreement shall remain the exclusive property of that Party.
7.2.By signing the Agreement, the Client grants the Provider and its consultants a non-exclusive, non-transferable and free-of-charge licence authorising the Provider and its consultants to use and, as the case may be, modify, adapt and improve the elements protected by the Client’s Intellectual Property Rights, solely for the purpose of performing the Provider’s obligations under the Agreement.
Article 8 Provider’s prices
8.1.The Provider’s prices are set in accordance with the particulars of the purchase order. For any order of less than €50 excluding VAT, a surcharge of €7.50 for administrative costs shall be charged.
8.2.Unless otherwise stipulated in the purchase order, the Provider’s prices and the amounts referred to in the supply and services agreement do not include VAT, shipping costs or administrative costs. The Client undertakes to pay the VAT and the costs and disbursements as invoiced by the Provider.
8.3.Unless otherwise stated in the purchase order, the Provider’s remuneration shall include remuneration for the transfer of the author’s economic rights to the Client, but shall not include the costs and disbursements specifically incurred by the Provider for the supply of the Services to the Client (for example accommodation costs, travel costs outside Belgium, etc.). Such costs and disbursements shall be paid by the Client to the Provider in accordance with the particulars of the purchase order.
8.4.Any travel or other service by the Provider rendered useless or unnecessary by the Client’s actions shall be invoiced by the Provider to the Client.
8.5.The Provider’s prices are automatically indexed on 1 January each year in accordance with the following formula: (Base price x new index) / Base index. The base price is the Provider’s price on the date of signature of the purchase order. The base index is the Belgian consumer price index for the month of January of the year in which the supply and services agreement was signed. The new index is the Belgian consumer price index for the month of January of the year in which the Provider’s prices are indexed. The indexed prices apply immediately to current contracts.
Article 9 Invoicing
9.1.Where an advance attached to the order is payable upon signature of the purchase order, the Services shall only begin upon proof of payment of the advance. The Provider’s invoices are payable at the Provider’s registered office within thirty (30) working days of the invoice date.
9.2.Any dispute concerning a payment request must be made in writing within fifteen (15) calendar days of the invoice issue date. A dispute does not release the Client from its payment obligation. Any invoice issued by the Provider that is not disputed within fifteen (15) calendar days shall be deemed accepted by the Client as to its amount and may not subsequently be disputed.
9.3.The amount of any invoice not paid in full by the due date shall be increased automatically and without prior formal notice by late-payment interest of one (1) per cent per month, each month begun being considered a full month. Late-payment interest is capitalised annually.
9.4.Without prejudice to the other provisions, if an invoice is not paid within thirty (30) days of its date of dispatch, the Provider is entitled to increase its amount by twenty (20) per cent by way of compensation for administrative costs, with a minimum of two hundred (200) euros, unless it is able to establish, in accordance with the Act of 2 August 2002, the costs actually incurred to recover its claim.
9.5.Likewise, without prejudice to the foregoing provisions, non-payment of an invoice on its due date entitles the Provider to suspend performance of its services for the Client, to terminate any ongoing assignment and/or to withhold any order until full payment of all debts, including compensation, late-payment interest and reminder costs. Failure to pay an invoice on its due date makes all sums owed by the Client to the Provider immediately due and payable, regardless of any payment facilities previously granted.
9.6.The Client hereby accepts that the Provider shall set off any debt owed by the Client to it against any claim the Client may have against the Provider.
9.7.The Client authorises the Provider to send it all invoices electronically.
Article 10 Liability
10.1.The Provider’s liability is limited to that imposed on a mandatory basis by law. The Provider may only be held liable in the event of gross negligence or wilful misconduct attributable to it. In particular and without limitation, the Provider is released from all liability in the event of partial or total non-performance of the Agreement or delay in performance resulting from a fortuitous event, the act of a third party or a Force Majeure event.
10.2.The Provider warrants that it holds the Intellectual Property Rights, including the economic rights under copyright, attached to YZYflow and its components.
10.3.The Provider warrants that the information, services and functionalities made available to the Client through YZYflow, if used in accordance with the instructions given by the Provider, comply with generally accepted standards, and that the elements made available to the Client respect the rights of third parties and, more generally, are not unlawful.
10.4.The Provider warrants that it takes appropriate measures to secure its databases and access to its servers.
10.5.Under no circumstances may the Provider be held liable for:
10.5.1.Incorrect parameter setting and/or configuration of YZYflow by the Client;
10.5.2.Errors, omissions and/or changes in the information provided by the Client for the purpose of the parameter setting and/or configuration of YZYflow by the Provider;
10.5.3.A malfunction of the Client’s IT infrastructure;
10.5.4.Misuse of YZYflow by the Client;
10.5.5.The information, content, messages, communications and data provided by the Client in connection with the use of YZYflow;
10.5.6.A modification of YZYflow or its functionalities following the entry into force of new legal/regulatory provisions or at the initiative of any authority (judicial, administrative, regulatory, ...);
10.5.7.Any use of YZYflow that would be contrary to the applicable legal, regulatory or contractual provisions or that would harm the interests of the Client or third parties;
10.5.8.Any disruption, malfunction or interruption, whatever its duration, of YZYflow or the inability of users to access the services of YZYflow that is linked to network disturbances (electricity, internet, ...) attributable to the Client;
10.5.9.Any disruption, malfunction or interruption, whatever its duration, of third-party applications used in connection with YZYflow;
10.5.10.Damage resulting directly or indirectly from the use of YZYflow or from the inability of any person accessing YZYflow to understand its content or to use it.
10.6.The Provider supplies its Services “as is”. The Client assumes all risks associated with the use of the Services. Under no circumstances may the Provider be held liable for any damage of any kind whatsoever (in particular: loss of profits, loss of information, loss of data, business interruption, personal injury and invasion of privacy, loss of earnings, reduction in turnover or any increase in the Client’s overheads) nor may it be held liable for any pecuniary or other loss related to the Agreement or to the inability to use the Services.
10.7.Without prejudice to the other provisions of the Agreement, the Client acknowledges that the Services are developed for general use in various systems and applications. The Client acknowledges that the Services have not been developed to meet the Client’s particular individual needs and that it is therefore the Client’s responsibility to ensure that the Services meet such needs. The Services are not developed for, nor intended to be used in, any specific system or application.
10.8.The Client is solely responsible for acquiring, servicing, maintaining and updating, at its own expense, its own equipment (including hardware, computers and appropriate telecommunications services) required to use the Services. The Client must ensure that its equipment is adaptable to, compatible with and suitable for the use of the Services. Without prejudice to the other limitations of liability contained in the Agreement, the Provider does not guarantee the compatibility of the Services with all types of equipment, and the Services are not compatible with all equipment.
10.9.Without prejudice to the warranty applicable to hardware, any complaint by the Client must reach the Provider within fifteen (15) calendar days. Well-founded complaints made in good time by the Client shall give rise to repair or replacement (in full or in part) or completion by the Provider, without the Provider being further liable for any compensation.
10.10.If, for any reason whatsoever, the Provider’s professional liability insurance does not cover the Provider’s liability where such liability can be established and repair, replacement or completion is not possible, the Provider shall cover the damage itself, but up to the total amount invoiced by the Provider to the Client for the Event in question.
10.11.The Provider is not liable for any damage resulting from the Client’s failure to comply with the Agreement. Furthermore, the Provider is not liable for defects caused directly or indirectly by the act of the Client or of a third party, whether such defects were caused by fault or negligence.
10.12.Neither Party may be held liable for delays or problems in the performance of the Agreement if they result from a Force Majeure event. On pain of nullity, the Party wishing to invoke Force Majeure must notify the other Party in writing as soon as possible, make every effort to limit its duration and inform the other Party in writing when the facts or circumstances constituting Force Majeure have ended. If the Force Majeure lasts more than ninety (90) calendar days, either Party may automatically terminate the Agreement by registered letter without any damages being owed to the other Party.
Article 11 Guarantee
11.1.Except in the event of wilful misconduct or gross negligence on the part of the Provider, the Client shall hold the Provider harmless and indemnify it against all actions, claims or legal proceedings of any nature whatsoever that may be brought or instituted by a third party against the Provider and that are a direct or indirect consequence of, or related to, work or services performed or to be performed by or on behalf of the Provider for the Client, or that are in any other way related to an assignment entrusted by the Client to the Provider, including, without limitation, all damages, costs or compensation that may be charged to the Provider in connection with any such action, claim or proceedings. If the Client has itself paid such damages in this context, it may not at any time seek reimbursement from the Provider of the payments it has thus made.
11.2.The Client accepts that the Provider grants no warranty and assumes no liability as to the suitability of the Services for the Client’s specific needs. The Provider takes all reasonable measures to provide the Client with compliant services, without however granting any warranty in that respect.
Article 12 Licence to use YZYflow
12.1.Subject to compliance with the provisions of the Agreement, the Provider grants the Client a non-exclusive, non-transferable, non-sublicensable, revocable and limited licence to use YZYflow internally solely for the Client’s own professional needs relating to the Event. Any other use of YZYflow for any purpose whatsoever is expressly prohibited. The Client is authorised to load, run, reproduce and store the components of YZYflow on IT equipment only to the extent necessary to use YZYflow for the Client’s own professional needs relating to the Event.
12.2.Any use of another functionality of YZYflow, of YZYflow in its entirety and/or in connection with any event(s) other than the Event shall be subject to a new licence in favour of the Client, the terms and conditions of which shall be set by the Parties in a written agreement.
12.3.The licence granted by the Provider to the Client under the Agreement shall be immediately and automatically terminated if (i) at any time the Client fails to fulfil its obligations under the Agreement in a timely manner, or (ii) upon termination of the Agreement. In such case, the Client shall immediately cease using YZYflow and shall promptly remove YZYflow from all its equipment.
12.4.Without prejudice to the other restrictions applicable under the Agreement or applicable law, and without prejudice to Articles XI.299 and XI.300 of the Code of Economic Law, the Client may not:
12.4.1.Reproduce or copy YZYflow, except for backup copies made solely for its own use which may not be provided to third parties and except for copies necessary for the proper functioning of YZYflow (e.g. installation copies);
12.4.2.Use any part of YZYflow to develop software or products or services or create derivative works of YZYflow; or protect, have protected, exploit and/or have exploited, during the term of this agreement and after its termination, directly or indirectly, where applicable through a third party, in any country whatsoever, a similar platform, application and/or service for which it has, indirectly or directly, taken over the original features of YZYflow, or which is likely to cause confusion in the minds of consumers;
12.4.3.Hand over or transfer YZYflow to a third party in any manner whatsoever (assign, sublicense, lend, sell, invoice, distribute, share, transfer, pledge, exchange, donate, rent or otherwise). The Client is not authorised to sell, transfer, assign or grant access to YZYflow to any third party or make YZYflow or any password, key or other access code of YZYflow available to any third party;
12.4.4.Carry out any translation, adaptation, arrangement or other modification of YZYflow or carry out any reproduction, distribution, communication, display or communication to the public of the results of such acts;
12.4.5.Adapt, modify, decompile or disassemble YZYflow or attempt to discover the source code of all or part of YZYflow, except to the extent that applicable law expressly prohibits this restriction;
12.4.6.Remove, reduce, block or modify any title, logo, trade mark, copyright and patent notice, digital watermarks, disclaimers of liability or other legal notices included in YZYflow;
12.4.7.Participate, alone or with others, in illegal, deceptive or unethical practices or activities that could be detrimental to YZYflow or the Provider.
12.5.The Client obtains under licence only the rights set out in this provision. All rights not expressly granted to the Client under the Agreement are reserved to the Provider. The Agreement does not entitle the Client to upgrades, updates or maintenance or other services relating to YZYflow, and the Provider does not guarantee their availability. Notwithstanding the foregoing, throughout the term of the Agreement, the Provider reserves the right to modify, update, correct and/or adapt all or part of YZYflow, at any time and without any obligation to inform the Client, in order to ensure the optimal operation of YZYflow.
12.6.If the Client communicates to the Provider any comments, bug reports, criticism, improvements or modifications proposed or suggested by the Client for YZYflow (the “Feedback”), such Feedback is provided on a non-confidential basis (notwithstanding any notice to the contrary given by the Client when communicating the Feedback) and the Provider shall be entitled to use the Feedback at its discretion, including without limitation by incorporating the suggested changes into YZYflow or into any other material, software or services of the Provider. The Client hereby grants the Provider under the Agreement a perpetual, irrevocable, transferable, sublicensable, non-exclusive, free-of-charge and worldwide licence to all rights necessary for the Provider to incorporate and use the Feedback for any purpose, including to create and sell products and services.
12.7.Without prejudice to the other provisions of the Agreement, the Provider retains all Intellectual Property Rights relating to the Software, including the right to assign and license such Intellectual Property Rights to any third party for any purpose whatsoever. In particular, YZYflow is protected by copyright of which the Provider remains the sole holder.
12.8.No provision of the Agreement shall be deemed to expressly or tacitly establish an assignment or licence of the Provider’s Intellectual Property Rights to the Client relating to products, services, technologies or know-how, operating procedures, marketing documents or strategies, intangible assets, property rights or any other tangible or intangible assets, except as expressly provided in the Agreement. In particular, no right (including any intellectual property right) of the Provider is assigned to the Client under the Agreement. Likewise, the Provider retains physical ownership of the physical media of YZYflow, in source code and object code versions, as well as all design material, documents, results and work relating thereto. The Client undertakes not to challenge the Provider’s intellectual and/or physical property relating to the design, development and/or marketing of YZYflow and its components.
12.9.The Provider remains the sole owner of all information relating to YZYflow obtained or developed during the performance of the Agreement and of the Intellectual Property Rights relating thereto. The Provider has the right at any time to make such modifications, improvements, corrections, updates, upgrades or other changes to YZYflow as it deems appropriate.
12.10.The licence granted under the Agreement does not constitute a sale of the Intellectual Property Rights relating to the Software and the Agreement does not confer on the Client any right to patents, copyrights, trade marks, trade secrets, confidential information or any other right or licence relating to the Provider’s products and services, without prejudice to the rights expressly granted under the Agreement. The Client agrees to take reasonable measures to prevent unauthorised copying or disclosure of YZYflow. The Client may not remove any technical protection measure on any copy of YZYflow.
12.11.The licence relating to YZYflow granted by the Provider is intuitu personae, such that it may under no circumstances be transferred to a third party, be considered part of the Client’s assets, be exploited by a court-appointed administrator and/or be contributed to a company.
12.12.If the Client becomes aware of any infringement, unauthorised use, misappropriation, ownership claim, threatened infringement or any other similar activity against any Intellectual Property Right relating to YZYflow (an “Infringement”), the Client must immediately inform the Provider in writing and must promptly provide the Provider with any evidence of such Infringement available to the Client. The Provider has the right, but not the obligation, to bring, pursue and control any action or proceedings relating to an Infringement.
12.13.Notwithstanding any provision to the contrary in the Agreement, it is expressly agreed that where the Provider makes available software or services supplied by third parties, the terms and conditions applicable to such third-party software and services are those set by the third parties, and the Client expressly declares that it will comply with them. The Provider will inform the Client how to access these terms and conditions at the Client’s first request. The Client releases the Provider from all liability, and the Client shall indemnify and hold the Provider harmless against any claim, action and compensation arising from or in connection with a breach, attributable to the Client, of the terms and conditions applicable to such third-party software and services.
12.14.The Client shall not continue to use YZYflow after the date on which the Agreement ends.
Article 13 Client’s obligations relating to the provision of YZYflow
13.1.The Client warrants to the Provider that its IT system will be and will always remain suitable for YZYflow throughout the term of the Agreement and will at all times meet the technical prerequisites, compliance with which is a condition for the proper functioning of YZYflow. Otherwise, the Provider shall not be liable for any failure of YZYflow to function, even partially, at the Client’s premises.
13.2.At the same time as YZYflow is made available, the Provider will provide the Client with an electronic version of the YZYflow user manual containing all the information necessary and useful for the proper use of YZYflow. The Client undertakes to comply with the instructions in the user manual supplied by the Provider to ensure optimal operation of YZYflow.
13.3.In the event of a malfunction of YZYflow, total or partial disturbance in the enjoyment of YZYflow, insufficient performance or technical defect, whatever the cause and except in cases of Force Majeure, the Client shall not be entitled to any suspension or termination of the Agreement, nor to any reduction in rent, nor to any compensation whatsoever. The Client waives the right to invoke the defence of non-performance (exceptio non adimpleti contractus), without prejudice to its right to claim damages in court within the limits permitted by the Agreement.
13.4.The Client is solely responsible for the settings of YZYflow, in particular the settings requested and the selection of files to be processed by YZYflow. The Client will itself carry out the configuration and functional set-up of YZYflow for each event covered by the user licence.
13.5.At the Client’s express request, the Provider may carry out the configuration and/or set-up of YZYflow at the applicable rates. In that case, the Client undertakes to provide the Provider with all the information needed for the configuration and/or set-up of YZYflow no later than 2 months before the opening of the Event. The Client also undertakes to check the configuration and/or functional set-up carried out by the Provider on the basis of the information the Client has provided, for which the Client bears sole responsibility. If the Client fails to meet the deadline set and/or to provide all the required information, the Provider cannot be held liable for the consequences of the non-communication or late communication of such information.
13.6.The number of authorised accesses to YZYflow is set out in the purchase order. Access to YZYflow is via usernames and passwords specific to the Client. The Client is solely responsible for the confidentiality of its usernames and passwords and for any use that may occur without its knowledge. The Client undertakes to keep its identification and access details for YZYflow, which, depending on the case, it may be the only one to know, with the utmost care. If these details are lost, any service provided by the Provider to recover or renew them will be invoiced to the Client.
13.7.The Client undertakes to inform the Provider of any malfunction of or damage to YZYflow or any of its components that the Client may observe, as well as of any operating anomaly partially or totally affecting the output and quality of the service, by post or by email within one (1) hour of its discovery. Failing this, the Client shall be solely responsible for the consequences of any faulty operation of YZYflow and waives the right to invoke the Provider’s liability.
13.8.“Consumer” support and practical questions from “ordinary” users (bar staff, cashiers, etc.) regarding the use of YZYflow during the Event will be handled by the Client. To this end, YZYflow will display an email address and telephone number belonging to the Client to be contacted with questions on the use of YZYflow. In the event of a technical problem reported by a YZYflow user during the Event, the Client undertakes to inform the Provider as soon as possible, so that everything can be done to ensure optimal operation of YZYflow.
13.9.In general, the Client is required to comply strictly with the instructions given by the Provider when YZYflow is installed. The Client is also required to use YZYflow and the hardware in accordance with their normal use and to keep them in good condition.
13.10.The Client undertakes to use YZYflow with the care of a prudent and reasonable person, in accordance with the user manual supplied by the Provider and in strict compliance with the terms of use agreed with the Provider.
Article 14 Provider’s services relating to the provision of YZYflow
14.1.The Provider will make available to the Client the equipment necessary for the proper functioning of YZYflow. The Provider will also supply the Client with the NFC media and consumables necessary for the use of YZYflow. The equipment, NFC media and consumables will be supplied to the Client at the Provider’s applicable rates.
14.2.It is expressly agreed that the Client’s Wi-Fi network is dedicated primarily to the Services and takes priority over any other Wi-Fi network. Should a Wi-Fi transmitter interfere with the Wi-Fi network used for the Services, the Provider has full authority to have the transmitter in question switched off immediately and without notice. At the Client’s request, the Provider may make available the hardware and Wi-Fi network needed to connect to YZYflow during the Event. In that case, the Provider will deploy network coverage for connection to YZYflow in the event’s activity areas identified in the site description. The hardware and Wi-Fi network needed to cover YZYflow’s functionalities will be supplied to the Client at the Provider’s applicable rates.
14.3.The Provider undertakes to provide the Client with a technical assistance and maintenance service for YZYflow throughout the entire period during which YZYflow is made available. As YZYflow is a Software as a Service (SaaS) platform with users from all over the world, support is available 24/7 in the event that YZYflow is unavailable. To ensure optimal delivery of the assistance and maintenance services, the Client undertakes to report to the Provider, as soon as possible and at the latest within the hour, any disruption or interruption of any component of YZYflow. The assistance and maintenance services will be provided to the Client at the Provider’s applicable rates.
14.4.Throughout the period of use of YZYflow in accordance with the Agreement, the Provider undertakes to provide the remote support needed to ensure the proper functioning of YZYflow and a quality service to the Client.
Article 15 Sale of hardware to the Client
15.1.Where the Services include the supply of hardware (computer, server, peripherals, etc.) to the Client, delivery takes place at the location agreed in the purchase order; if no such location has been agreed, delivery takes place at the Provider’s registered office. Any change to the order by the Client that is accepted by the Provider may result in an extension of the delivery period.
15.2.Hardware delivered to the Client is deemed to have been accepted by the Client no later than five (5) calendar days after delivery, unless the Client notifies the Provider of a precise and detailed complaint by registered letter before this period expires. Acceptance covers all visible defects and lack of conformity, that is, all defects that the Client could have detected at the time of delivery or within the five (5) calendar days following delivery through a careful and thorough inspection. Spare parts are always delivered carriage forward and cash on delivery.
15.3.The scope and duration of the warranty offered by the Provider are limited to those of the manufacturer’s warranty for the hardware delivered. The warranty period shall nevertheless not exceed six (6) months. No warranty is given for the sale of second-hand goods. Any warranty is subject to the following cumulative conditions being met: (i) the defect renders the hardware, to a significant extent, unfit for the use for which it is normally intended or for a special use expressly mentioned in the special conditions of sale; (ii) the hardware has been properly assembled and installed; (iii) the hardware is used under normal conditions; (iv) the maintenance and operating instructions provided on delivery or set out in the documentation accompanying the delivery have been followed; (v) the hardware has not been modified, dismantled or repaired by the Client or by a third party; and (vi) the Client has notified the Provider of the complaint concerning the latent defect by registered letter within a maximum of one (1) month after discovering the latent defect.
15.4.Where the Provider’s warranty on the hardware applies, the warranty is limited, at the Provider’s option, to free repair or replacement of the defective hardware. Under no circumstances will the hardware be refunded to the Client. Under no circumstances may the Provider’s liability (for visible damage or latent defects) exceed the invoiced value of the hardware concerned. The Client must return the defective hardware to the Provider at its own cost and risk so that it can be repaired or replaced. The hardware must be returned carriage paid and is sent back carriage forward.
15.5.A complaint by the Client in no way suspends the payability of the amounts owed by the Client to the Provider, and the Provider’s acceptance of returned hardware does not constitute any acknowledgement of an error or damage.
15.6.All hardware sold to the Client must in principle be collected by the Client from the Provider’s registered office within the period set by the Provider. Where the Provider agrees to deliver the hardware supplied to the Client, such delivery is carried out according to arrangements freely determined by the Provider, and the hardware concerned travels at the Client’s cost and risk, except in the event of wilful misconduct or gross negligence attributable to the Provider or its agents. Transport costs for the hardware will, where applicable, be invoiced separately to the Client. Any delivery period granted by the Provider is given purely as an indication, and meeting the delivery period does not constitute an obligation of result on the part of the Provider. The Provider may only be held liable for failure to meet the delivery period in the event of gross negligence or wilful misconduct on its part. Failure to meet the delivery period does not entitle the Client to refuse to take receipt of the goods.
15.7.The Client’s failure or refusal to take delivery of the hardware ordered constitutes a serious breach of the Agreement, entitling the Provider to terminate the Agreement for serious breach. In that case, the Client shall owe the Provider, automatically and from the date of termination of the Agreement, fixed compensation equal to thirty (30) per cent of the total amount of the order, without prejudice to the Provider’s other remedies and its right to seek compensation for any part of the loss exceeding the amount of the aforementioned fixed compensation.
15.8.The transfer of risk in the hardware sold by the Provider to the Client takes effect upon signature of the corresponding supply and services agreement. Ownership of the hardware sold by the Provider to the Client passes on the date on which the Client pays in full the price of the hardware concerned and its accessories (any costs, interest and penalties). Until ownership has passed, the Client expressly undertakes not to sell, assign, pledge or, in general, dispose of the hardware sold by the Provider to the Client. The Provider may invoke this retention of title clause eight days after sending the Client a formal notice to pay, by registered letter with acknowledgement of receipt, that has remained without effect. The hardware concerned must then be returned to the Provider immediately and on simple request. The Client shall nevertheless remain solely liable for the loss of the goods sold, even by accident or Force Majeure.
15.9.It is expressly agreed between the Parties that the Client releases the Provider from any direct or indirect liability relating to the hardware delivered by the Provider to the Client, to the fullest extent permitted by law.
Article 16 Rental of hardware to the Client
16.1.All hardware rented or simply made available to the Client remains the property of the lessor and may not be seized.
16.2.The Client is responsible for the hardware rented or made available to it and must look after it with the care of a prudent and reasonable person. The Client must give the Provider’s representatives access at all times to any place where hardware rented or made available to it is located, so that the Provider’s representatives can check that this hardware is in good condition.
16.3.The Client is required to insure the hardware rented or made available to it on an “all risks” basis throughout the entire period during which the hardware concerned is made available. The insurance policy for the hardware rented or made available must at least cover the hardware concerned for its new replacement value and against the risks of theft, vandalism, bad weather, riots and destruction for any reason whatsoever, including Force Majeure. The Client will provide a copy of the insurance policy for the hardware made available to it at the Provider’s first request.
16.4.Any failure by the Client to meet its obligation to keep, insure and supervise the hardware rented or made available to it entitles the Provider to recover this hardware without delay, on first request, without notice and without compensation.
16.5.All hardware rented or made available to the Client must in principle be collected by the Client from the Provider’s registered office within the period set by the Provider during its opening hours, Monday to Friday from 9am to 12.30pm and from 1pm to 5.30pm. Where the Provider agrees to deliver the hardware supplied to the Client, such delivery is carried out according to arrangements freely determined by the Provider, and the hardware concerned travels at the Client’s cost and risk, except in the event of wilful misconduct or gross negligence attributable to the Provider or its agents. Transport costs for the hardware will, where applicable, be invoiced separately to the Client. Any delivery period granted by the Provider is given purely as an indication, and meeting the delivery period does not constitute an obligation of result on the part of the Provider. The Provider may only be held liable for failure to meet the delivery period in the event of gross negligence or wilful misconduct on its part. Failure to meet the delivery period does not entitle the Client to refuse to take receipt of the hardware.
16.6.Hardware rented or made available to the Client is deemed to have been accepted by the Client no later than two (2) calendar days after its receipt by the Client, unless the Client notifies the Provider of a precise and detailed complaint by registered letter before this period expires. Acceptance covers all visible defects and lack of conformity, that is, all defects that the Client could have detected at the time of receipt or within the two (2) calendar days following delivery through a careful and thorough inspection.
16.7.The Provider checks the hardware rented and made available to the Client before supplying it and ensures that it complies with the standards in force. Without prejudice to the preceding paragraph, the Client waives any recourse against the Provider in the event of breakdown or defect of the hardware rented or made available to it, and the Client waives any claim against the Provider for compensation, interest or reimbursement of repair costs in the event of breakdown or defect of the hardware rented or made available to it.
16.8.The Client is required to pay the Provider a deposit for the rental or provision of the hardware. The amount of the deposit will be stated in the supply and services agreement according to the value of the hardware made available or rented, but may not be less than €200. The deposit will be refunded by the Provider to the Client if the Client returns all the hardware rented or made available to it in perfect condition or, failing that, after the Client has paid the Provider all sums due for the replacement, repair, removal, breakdown service, cleaning and late return of the hardware concerned.
16.9.When the Client returns the hardware rented or made available to it, the Provider has seven (7) calendar days from its receipt of the hardware concerned to test this hardware and check that it has been returned in perfect condition by the Client. The issue of a return slip by the Provider to the Client does not constitute acceptance of the returned hardware and applies only to the acceptance of this hardware in terms of quantities.
16.10.If the Client does not return the hardware rented or made available to it to the Provider in perfect condition, for whatever reason (theft, loss, damage, accident, etc.), the Client shall pay the Provider the price of the as-new value of the hardware not returned in perfect condition, as well as any breakdown service, cleaning and repair costs for the hardware concerned. The Provider may deduct this amount from the Client’s deposit. Payment by the Client to the Provider of the as-new value of the hardware not returned in perfect condition does not entitle the Client to obtain the hardware not returned in perfect condition. Under no circumstances shall the Provider be required to hand over to the Client hardware that has not been returned in perfect condition.
16.11.If the Client does not return the hardware rented or made available to it to the Provider in perfect condition and, in the Provider’s opinion, this hardware can be repaired or cleaned without needing to be replaced, the Client shall pay the Provider the amount of the repair and cleaning costs of the hardware invoiced to it by the Provider. The amount of the repair and cleaning costs of the hardware will be calculated on a time-and-materials basis by applying the Provider’s hourly rate. The Provider may deduct the amount of the repair and cleaning costs from the Client’s deposit.
16.12.Hardware rented or made available to the Client must be returned to the Provider’s registered office during its opening hours, Monday to Friday from 9am to 12.30pm and from 1pm to 5.30pm. In the event of late return of the hardware rented or made available, the Provider will invoice the Client a fee per day of delay, any day begun being counted as a full day. The amount of the late fee will be calculated on the basis of the daily rental rate of the hardware rented or made available and returned late. The Provider may deduct the amount of the late fee from the Client’s deposit.
16.13.The Client is required to inform the Provider immediately by email and by registered post if all or part of the hardware rented or made available:
16.13.1.is seized by a third party. The Client also undertakes to notify the seizing party immediately that the hardware concerned by the seizure is the property of the Provider, sending a copy of its letter to the Provider;
16.13.2.is involved in an accident causing personal injury or property damage, or in civil and/or criminal proceedings;
16.13.3.is requisitioned, borrowed, stolen or damaged for any reason whatsoever.
Article 17 Services provided by the Provider’s staff at the Client’s site
17.1.Where the Provider sends members of its staff to the Client to perform all or part of the Services, the Client is always responsible for the safety of the staff concerned at the Client’s site, and the Client will inform the Provider’s staff in advance of the safety rules in force at the Client’s site. Except in the event of gross negligence or wilful misconduct attributable to the Provider or its staff members, the Client shall be solely liable for any personal injury or property damage of any kind caused to any member of the Provider’s staff seconded to the Client, during that secondment and in the course of the performance of the Agreement.
17.2.It is expressly agreed between the Provider and the Client that the Provider retains employer’s authority at all times over its staff members involved in providing the Services to the Client. The Client is not authorised to give instructions to the Provider’s staff members involved in providing the Services to the Client, except for the following instructions: (i) instructions relating to the schedule for the provision of the Services; (ii) instructions relating to safety at the Client’s site; (iii) instructions relating to the organisation of the provision of the Services. In the event of a difficulty between the Client and a member of the Provider’s staff in the course of providing the Services, the Client will inform the Provider without delay and the Provider will resolve the difficulty in question.
17.3.The price for the provision of the Services by the Provider’s staff members will be stated on the purchase order. If, for reasons not attributable to the Provider, the duration of the provision of the Services exceeds the duration initially envisaged when the purchase order was drawn up, the amount invoiced by the Provider will be increased in accordance with the hourly rate stated in the supply and services agreement or otherwise applicable.
17.4.The Client is required to provide, at its own expense, at least three meals a day to the Provider’s staff members involved in providing the Services at the Client’s site, for each day on which the Provider’s staff members are present at the Client’s site. The Client is required to provide, at its own expense, accommodation within a maximum radius of 10 km of the Client’s site for each member of the Provider’s staff involved in providing the Services at the Client’s site (two people per room, except for the project manager, who will have a single room). All practical information concerning meals and accommodation will be communicated by the Client to the Provider no later than 10 calendar days before the start of the assignment of the Provider’s staff members involved in providing the Services at the Client’s site. If the Client fails to provide the aforementioned meals and/or accommodation under conditions consistent with the Agreement, the Provider will invoice the Client for the corresponding meal and accommodation costs on presentation of supporting documents, plus 20% as an administration fee.
Article 18 Management of money flows
18.1.YZYflow can aggregate all transactions recorded by the Client. The YZYflow modules generating financial transactions are: (i) Ticketing; (ii) Mobile App; (iii) Top-up Point; (iv) Point of Consumption; (v) Volunteer Module; and (vi) Back Office.
18.2.YZYflow will only take into account transactions entered by the Client’s staff identified by YZYflow and using the hardware made available by the Provider.
18.3.YZYflow is certified and does not allow recorded transactions to be altered. Every action performed on a transaction is available in a status log.
18.4.The possible types of transaction are: (i) monetary transaction paid in cash; (ii) monetary transaction via payment on a bank terminal; and (iii) transaction via smartphone module. The flows accepted by the modules made available to the Client are identified in the purchase order.
18.5.Amounts from cash transactions are the sole responsibility of the Client.
18.6.Monetary transactions from mobile applications are processed by acquirers via subscriptions taken out by the Provider. The Provider reserves the right to change at any time the list of acquirers through which monetary transactions pass.
18.7.The Provider offers the Client the option of entering into an “Alliance” agreement between the acquirer and the Client, at the Provider’s sole choice. In this way, all transactions are carried out in the name and on behalf of the Client. The Provider cannot be held liable for any consequence of the Client not entering into the “Alliance” agreement. The Client acknowledges having received the Provider’s offer to enter into the Alliance agreement.
18.8.If the Client enters into the “Alliance” agreement between the acquirers and the Provider, the sums resulting from electronic transactions, after deduction of the processing fees described in the agreement, are transferred directly by the acquirer to the bank account specified by the Client.
18.9.If the Client does not enter into the “Alliance” agreement, the Provider will receive the sums concerned in its third-party account and will periodically transfer to the Client the balance of the sums resulting from electronic transactions, after deduction of processing fees. The frequency of transfers will be defined in the YZYflow settings.
18.10.Monetary transactions from mobile terminals rented out by the Provider are processed by acquirers via subscriptions taken out by the Provider. The Provider reserves the right to change at any time the list of acquirers through which monetary transactions pass. The Provider ensures and certifies that the selected acquirers comply with all legislation in force for carrying out monetary transactions in the name of the Client.
Article 19 Changes to the Event
19.1.The Client undertakes to inform the Provider as soon as possible of any substantial change made to the Event (date(s), duration, venue(s), activity area(s), programme, organisation, etc.).
19.2.Depending on the changes and/or how soon the Client informs it, the Provider will assess whether, and to what extent, all or part of the Services can still be provided for the Event. If so, the Provider reserves the right to adjust its price in accordance with the rates set out in the purchase order.
19.3.If the changes and/or the notice period do not allow the Provider to provide its Services, or at least to ensure optimal operation of YZYflow during the Event, the Provider may terminate the Agreement without notice and without compensation, and without prejudice to the payment of any damages by the Client. In any event, sums paid to the Provider shall remain due to it.
Article 20 Cancellation of the Event
20.1.If the event is cancelled for a reason other than force majeure, the Agreement will be terminated automatically and the Client will not be authorised to use YZYflow.
20.2.If the cancellation of the Event for a reason other than force majeure occurs less than 60 days before the originally scheduled opening date, the Client undertakes to cover all costs incurred by the Provider, including the Provider’s internal costs such as those relating to the time spent by the Provider’s staff preparing the Services, without prejudice to the Provider’s right to obtain full compensation for any loss it may suffer as a result of the cancellation of the Event and the non-provision of the Services. In any event, sums paid to the Provider shall remain due to it.
Article 21 References
21.1.The Client undertakes to display the Provider’s logo on the hardware used by the Client during the Event (non-exhaustive list: automatic top-up kiosks, top-up kiosks, etc.) and on the mobile application.
21.2.The Client expressly authorises the Provider to use the name and logo of the Event on any medium whatsoever, as part of the commercial and/or promotional communications carried out by the Provider throughout the term of the Agreement.
21.3.The Client authorises the Provider to use references to its event for marketing purposes and to take photographs and footage during the event. If the layout of the event so requires, the Client will provide the necessary and sufficient access for the Provider to take such photographs and footage.
21.4.As long as the Client does not withdraw its consent, the Provider is authorised to inform its clients, prospects and other business contacts that the Client is one of its Clients, and the Provider is authorised to use the Client’s name and logo on its reference list. The Provider will immediately stop stating that the Client is one of its clients and using the Client’s name and logo at the Client’s first request.
Article 22 Personal data
22.1.The Client authorises the Provider to process the personal data that the Client communicates to the Provider.
22.2.The Client declares that it has read the Provider’s rules on the processing of personal data and that it complies with them.
Article 23 Assignment
23.1.The Provider has the right to assign the Agreement in whole or in part, as well as the rights and obligations arising from the Agreement, to any third party without the Client’s consent and without the Client being entitled to any compensation. In particular, the Provider has the right to assign any claim it holds against the Client, and such assignment will oblige the Client to pay the new holder of the claim. The Provider has the right to subcontract all or part of the Services to subcontractors without the Client’s consent.
23.2.The Client does not have the right to assign the Agreement in whole or in part, free of charge or for consideration, to any third party. Any assignment of all or part of the Agreement made by the Client in breach of this provision shall be null and void by operation of law and unenforceable against the Provider.
Article 24 Entire Agreement
24.1.The Agreement constitutes the entire agreement between the Parties with regard to its subject matter. It supersedes all other agreements, proposals, offers or declarations of intent previously made by either Party, the general terms and conditions of either Party, as well as any other communication between the Parties concerning the content of the Agreement.
24.2.Any adaptation or amendment of the Agreement shall constitute an addendum to the Agreement and shall only be binding on the Parties insofar as such adaptation or amendment has been made in writing and approved in writing by each Party. Tolerance, even prolonged, shall under no circumstances be deemed a tacit amendment of the Agreement.
24.3.Any waiver by a Party of all or part of its rights or interests under the Agreement must be made in writing. A Party’s failure to enforce any of its rights relating to the Agreement or to insist on compliance with the provisions of the Agreement by the other Party cannot be interpreted as a waiver of that right or as acceptance of the breach of the Agreement.
24.4.The Agreement forms an integral part of the offers or of any agreement concluded between the Provider and the Client.
24.5.The Agreement takes precedence over the Client’s general or special terms and conditions, even if the latter provide that they apply exclusively. Any derogation from the Agreement is permitted provided that the Provider has given its prior written consent.
24.6.Every supply and services agreement shall be deemed to include, to the relevant extent, the Provider’s general and special terms and conditions and any document attached to or referenced in the supply and services agreement, unless otherwise provided in the purchase order. In the event of any inconsistency between a provision of the Provider’s general or special terms and conditions and a provision of the purchase order, the relevant provision of the supply and services agreement shall prevail over the relevant provision of the Provider’s general or special terms and conditions. The order of precedence of the contractual documents agreed between the Parties is as follows: (1) the supply and services agreement prevails over (2) any special terms and conditions, which prevail over (3) these general terms and conditions. All these documents apply in full to the contractual relationship between the Provider and the Client except, and only to the extent that, there is an inconsistency between them, in which case the above order of precedence applies to the provision(s) concerned.
24.7.The Provider’s failure to enforce any provision of the Agreement can under no circumstances be deemed or interpreted as (i) a waiver of its subsequent application, or (ii) a waiver by the Provider of the application of the other provisions of the Agreement.
Article 25 Non-solicitation
25.1.During the term of the Agreement and for a period of twenty-four months from the end of the Agreement, the Client shall not, directly or through an intermediary, on its own behalf or on behalf of third parties, solicit, attempt to solicit, use the services of or recruit any member of staff or any independent contractor of the Provider. This clause does not apply to prohibited acts resulting from standard recruitment advertisements of general scope that do not specifically target any member of staff or independent contractor of the Provider, any supplier of the Provider or any business partner of the Provider.
25.2.In the event of a total or partial breach of the non-solicitation prohibition, during or after the end of the Agreement, the Client shall automatically owe the Provider minimum fixed compensation of fifty thousand euros (€50,000). This fixed compensation is in no way prejudicial to the Provider’s right to bring any proceedings necessary to defend its interests and to claim compensation from the Client exceeding fifty thousand euros (€50,000), provided that the amount of the loss caused to the Provider by the breach of the non-solicitation prohibition exceeds the amount of the fixed compensation due to it under the Agreement.
Article 26 Notices
26.1.Any notice to be given under the Agreement shall be considered valid if it is delivered by hand to the persons concerned against a signed acknowledgement of receipt, by fax or email with confirmation, or by registered letter to the addresses stated in the Agreement. Each Party must inform the other Party of any change of address occurring during the term of the Agreement.
Article 27 Invalidity
27.1.The possible invalidity or unenforceability of any provision of the Agreement shall in no way affect the validity and enforceability of the other provisions of the Agreement.
27.2.The Parties undertake to replace any provision of the Agreement that is held invalid with another provision having an equivalent economic effect.
27.3.If a provision of the Agreement is invalid, that provision shall apply to the maximum extent permitted by law.
Article 28 Applicable law and disputes
28.1.The Agreement is governed by Belgian law.
28.2.All disputes arising from or in connection with the Agreement shall be finally settled by the courts and tribunals of Brussels. The language of the proceedings shall be French.