1.1. These general terms and conditions shall govern the legal relationship between SKINN BV, with its registered office at Krakeleweg 39, 8000 Bruges, Belgium and with company number 0829.184.506 on the one hand and SKINN’s clients (the “Client”) on the other hand, and shall apply to all offers made by SKINN or all agreements between SKINN and the Client that directly or indirectly relate to the services provided by SKINN to the Client, including but not limited to brand strategy services, brand definition services, brand design services (incl. web design and hosting), digital branding services, services relating to brand content creation and the delivery of external services (e.g. printing, copywriting, interior design) (the “Services”). The provisions of the price quotation, these general terms and conditions and the Processing Agreement together form the agreement with the Client (the “Agreement”). The Agreement shall only be concluded following written confirmation of the price quotation by the Client, or once SKINN starts providing the Services if no written confirmation of the price quotation is issued.
1.2. The Agreement shall replace all written or verbal contracts, proposals and obligations relating to the same object and preceding the date of this Agreement. As such, any commercial documents and offers by Skinn shall not constitute an obligation on the part of SKINN.
1.3. The Agreement shall also take precedence over the general terms and conditions of the Client, even if those general terms and conditions state they are solely applicable. Any deviations from the Agreement shall only be possible following prior written permission from SKINN.
2. PERFORMANCE OF THE SERVICES
2.1.1. SKINN shall act to the best of its ability when providing and performing the Services. All actions by SKINN shall be considered an obligation of means.
2.1.2. If any delivery terms are stated,these shall be indicative only and shall not constitute any obligation of results on the part of SKINN. The breach of these delivery terms by SKINN shall not give rise to any damage compensation, nor to the termination of the Agreement. In case of non-delivery of Services by SKINN, any advances paid by the Client shall be reimbursed without interest or any other compensation.
2.1.3. All changes and/or additional work ordered by the Client, including in relation to any website or online store developed by SKINN at the request of the Client or in relation to any existing website or online store and/or any website or online store of the Client developed by a third party to which this Agreement relates (the “Website”), shall require the prior agreement of both the Client and SKINN and may be proved by all legal means, e.g. through the performance thereof, without objection, by SKINN. The Client acknowledges and accepts that all interventions by SKINN to perform changes, additional work, maintenance and/or repairs in relation to the Agreement may result in the Website and/or the data connected to the Website being unavailable or unusable during such interventions, without SKINN accepting any liability for such outages.
2.1.4. Any cancellation of Services (“Cancellation”) by the Client must occur within 15 working days following the conclusion of the Agreement in accordance with Article 1 and must be accepted by SKINN. In the event of Cancellation, fixed damage compensation of 25% of the value of the price quotation shall become due from the Client.
, and the same must be accepted by SKINN. In case of partial cancellation, the client shall be liable for the hours already worked and allocated in the schedule, at the rates applicable at that time.
2.1.6. If the client temporarily suspends activities or places a part of the assignment on hold, SKINN shall be free to cancel the remaining part of the assignment. If after signing the order form, the assignment is placed on hold for more than 6 months, SKINN shall be free to prepare a new quotation based on the rates applicable at that time.
2.1.7. SKINN reserves the right to enlist subcontractors, freelancers and/or external suppliers (e.g. printers or (web) hosting providers, trademark registration) for the performance of certain Services, without prior notice to the Client.
2.1.8. In relation to the servicing, improvement, maintenance and protection of SKINN’s Services and/or systems, SKINN also reserves the right to block access to or limit the use of (parts of) its system (whether or not temporarily), if SKINN deems it necessary to do so, without prior notice to the Client.
2.2.1. Notwithstanding Article 6 of these general terms and conditions, SKINN shall retain (tangible) ownership of the Website it has developed up to the point SKINN has received full payment from the Client. Regardless, and notwithstanding Article 2.2.2, all risks of loss, destruction and or damage of the Website shall be fully transferred to the Client from the point of delivery. Until such time as the Client has fully paid for the Website and the performance of the Services, the Client is prohibited from disposing of the Website via any transaction, including sale, exchange, gift, loan or pledge.
2.2.2. From the end of implementation or from the delivery of the Website, the Client is bound (together with SKINN) to test and check the Website for any faults or non-conformities over a period of 3 months. If it becomes apparent during this period that the website contains faults, the Client shall notify SKINN of such faults in writing no later than the final day of the aforementioned testing period. SKINN shall attempt to repair any faults highlighted during the testing period to the best of its ability. As part of this, SKINN shall have the right to implement temporary solutions. The Client and SKINN shall deem the website to have been definitively accepted on the first day following the testing period.
2.2.3. Any complaints regarding faults or non-conformities of the Website shall not suspend the (payment) obligations of the Client under the Agreement.
2.2.4. The provisions of Article 4 shall only apply to (those parts of) the Website that form the object of the Agreement. SKINN accepts no liability whatsoever for any faults (and/or cannot provide any warranty) in relation to (i) products, software and/or services by third parties and/or (ii) changes, revisions and or extensions of or in relation to the Website performed by third parties.
2.2.5. The Client shall be solely liable for its specific use of the Website and/or the purposes for which it uses the Website.
2.3. TECHNICAL SUPPORT AND MAINTENANCE
The Client may conclude a separate agreement with SKINN for services relating to technical support and maintenance, including content management, changes to existing content, the addition of new content, the performance of updates and upgrades to the Website and/or the creation of backups of the in relation to the Website.
2.4.1. In relation to hosting services related to the Website, for which the Client shall conclude a separate agreement with SKINN (if applicable), the Client acknowledges and accepts that SKINN shall use an external service provider or subcontractor (hosting provider), and that SKINN shall conclude a Service Level Agreement (SLA) with this provider or subcontractor to record the terms and conditions for such hosting services. The Client may at all times request a copy of the latest version of this SLA.
2.4.2. Notwithstanding Articles 5 and 7 of these general terms and conditions and the (provisions of the) SLA referred to in Article 2.4.1, SKINN shall bear no liability, insofar as these hosting services are concerned, for the loss or leak of transmitted or stored data or information as a consequence of errors on the part of the Client.
2.5. DOMAIN NAMES
2.5.1. 2.5.1The Client acknowledges and accepts that SKINN shall cooperate with (approved) registrars for the registration and renewal of domain names. The registration and renewal of domain names shall be subject to the terms and conditions specified in the regulations and general terms and conditions of the various bodies that supervise and are responsible for the applicable domain name system.
2.5.2. DNS Belgium vzw (http://www.dnsbelgium.be) is responsible for registrations in the .be domain. The general terms and conditions of DNS Belgium can be viewed on: https://www.dnsbelgium.be/en/terms-and-conditions-be-domain-names
. The Client expressly declares to have read these general terms and conditions and to accept their applicability.
2.5.3. SKINN shall bear no liability whatsoever for any registration of domain names by third parties (whether or not in bad faith) or any registration of domain names at the request of the Client that breaches the rights of third parties.
3. FEES, INVOICING AND PAYMENT
3.1. The Services shall be invoiced as specified in the Agreement, independently from the works performed by third parties. SKINN shall also have the right to charge an advance payment for costs and fees prior to or during the performance of the Services.
3.2. All of SKINN’s invoices shall be payable within 30 calendar days of their issue date. Any invoice amount that is not or not fully paid on the due date shall be automatically increased, without prior notice of default, by (i) interest equal to 1% per month of non-payment, with each month that has started considered to have passed, and (ii) a fixed damage compensation amount of 15% of the unpaid invoices, with a minimum of € 250. In addition, SKINN shall be entitled to charge the costs of serving notice of default and issuing reminders (“Payment Reminder Costs”). This article shall apply notwithstanding the right of SKINN to charge greater (damage) compensation subject to evidence of greater damage actually suffered.
3.3. In the event of non-payment of one or more invoices on their due date, all outstanding invoices that have not yet become due shall automatically become payable by the Client without prior notice of default. The Client shall not have the right to offset SKINN’s invoices against its own invoices.
4. CONTRACTUAL SHORTCOMINGS
4.1. In the event of non-fulfilment by the Client of one or more of its contractual obligations, including its payment obligations, SKINN shall serve notice of default on the Client by registered post. If the Client remains in breach of its
contractual obligations once ten (10) days have passed after the date of such notice of default, SKINN shall have the right to: (i) suspend all performances under the Agreement until the Client has fulfilled its contractual obligations. This means, among other things, that SKINN may suspend access to the website (possibly making it impossible for the Client to continue to perform electronic works and resulting in the blocking of access to the website and/or its data), no longer perform new backups of the Client’s data and render unavailable any backups already made. SKINN shall notify the Client in writing of any such decision. In such event, SKINN shall accept no liability whatsoever for any damage suffered by the Client or its clients as a result of such actions (more specifically but not limited to the loss of (personal) data, the impossibility for the Client to access its electronic documents, any lost profits etc.); or (ii) terminate the Agreement at the expense of the Client with immediate effect and without prior judicial intervention. In such event, SKINN shall be entitled to (additional) damage compensation from the Client, set at a fixed amount of 30% of the agreed total price of the Services agreed but not performed.
4.2. Insofar as the Client remains in default regarding the (full or partial) payment to SKINN of one or more outstanding invoices or regarding the fulfilment of its other obligations, SKINN shall have the right to suspend the performance of its Agreements (e.g. in relation to access to the website) with the Client until all outstanding invoices are fully settled including any additional damage compensation, late payment interest and Payment Reminder Costs (in which case the Client shall also owe SKINN a fee of € 250 (excl. VAT) for the reactivation of the Services), or to terminate the Agreement in accordance with Article 9, regardless of whether or not the outstanding invoices in question relate to the Agreement under which the Services are performed. In such case, SKINN shall accept no liability whatsoever for any damage suffered by the Client or its clients as a consequence of the aforementioned suspension or termination. If the Agreement is terminated as specified above, SKINN shall be entitled to (additional) damage compensation from the Client, set at a fixed amount of 25% of the agreed total price of the Services agreed but not performed.
5. COMPLAINTS AND LIABILITY
(if an objection is raised to an invoice, the Client must state the reason(s) for this). If any complaint is not submitted within this period, SKINN shall accept no liability for any damage and shall consider its invoice to have been accepted. In any case, all claims toward SKINN regarding the Services shall lapse one year after receipt of the invoice for the Services delivered.
5.2. SKINN shall only accept liability for damage directly arising from its own proven serious error, fraud or deliberate acts during the performance of the Services. SKINN shall in no event accept liability for any indirect damage or consequential damage including, among other things, loss of time, loss of customers, loss of profit, loss of (business) opportunities, loss of goodwill, damage to the equipment or software of third parties, loss of data, security breaches and the disclosure of confidential data (with the latter two categories subject to the provisions in relation to liability under the GDPR) or any other form of economic damage.
5.3. The Client undertakes to fully indemnify SKINN for the principal sum, interest and (judicial or lawyer) fees involved in any claim or demand from third parties pursuant or in relation to this Agreement and the Services performed by SKINN for the Client.
5.4. SKINN shall accept no liability for any damage of any nature whatsoever, whether direct, indirect and/or consequential, that may arise from: (i) any defects, errors, disruption, viruses or faults to or the temporary unavailability, incorrect availability or incomplete availability of the (computer) systems of the Client; (ii) (the content of) the (personal) data or information stored or exchanged via the Services, without prejudice to the applicable data protection legislation (and Article 6 below) and the processing agreement made between the parties, and (iii) disruption to the Services as a result of unforeseen events, server or internet malfunctions or force majeure. As the case may be, the delivery term shall be suspended for the duration of the disruption, plus the time required to restart the performance of the Services, without any damage compensation owed by SKINN to the Client.
5.5. In case of technical problems, SKINN shall at any time be entitled to immediately block (parts of) its Services and/ or (parts of) its systems and/or interfaces (whether or not temporarily) or limit the use thereof and/or take any other measures deemed necessary by SKINN, without prior notice to the Client and without any damage compensation owed by SKINN to the Client.
5.6. SKINN cannot be held liable for any damage arising from errors (including serious or deliberate errors) or shortcomings of agents appointed by SKINN or subcontractors, freelancers or third-party suppliers used by SKINN for the performance of (part of) the Services or that may arise from errors, faults or defects in the (computer) systems of its agents, subcontractors, freelancers or external suppliers. In addition, SKINN cannot be held liable for claims lodged by third parties against the Client arising from trademark registrations it instructs agents to perform.
5.7. In any circumstances, the Client must immediately and properly serve notice of default on SKINN following the observation of any damage. In the absence of such notice of default, the Client shall be deemed to have waived any claims or rights toward SKINN. The notice of default must contain a description of the alleged damage that is as complete and detailed as possible, so that SKINN can respond adequately. In any case, the Client shall lose any claims or rights toward SKINN if it has failed to (i) limit the damage immediately after it has occurred, (ii) prevent other or additional damage from arising or (ii) provide SKINN with all necessary information in relation to the alleged damage.
5.8. In any case, SKINN’s liability shall be limited to the lowest of the following amounts: (i) the cover provided by SKINN’s civil liability insurer; (ii) an amount equal to the lowest amount of the fees received by SKINN for the performance of the Services under the Agreement or (iii) the amount specified on the price quotation for the Services that give rise to SKINN’s liability.
5.9. The Client shall fully indemnify SKINN for the principal sum, interest and (judicial and lawyer) fees involved in all claims or demands by third parties in relation to the performance of the Agreement of the Services delivered by SKINN.
6. INTELLECTUAL PROPERTY RIGHTS
6.1. Unless otherwise agreed in writing, all intellectual property rights relating to creations or works (including but not limited to signs, logos, branding, marketing materials, websites, applications, software, text, videos, photos or any other content or information) developed by SKINN in relation to the performance of the Agreement shall be the exclusive property of SKINN or its licensors.
6.2. SKINN shall at all times be entitled to sign its Services and/or state its trading and/or brand name, logo or mark on its Services. The Client is prohibited from changing, removing or rendering unrecognisable any indication of the intellectual property rights of SKINN.
6.3. The client guarantees it is entitled to use and/or store any software and/or data it uses or stores in any way via the Services (e.g. as a licence holder or holder of the associated intellectual property rights). The Client acknowledges and accepts that SKINN uses or may use certain open-source software or freeware under licence that may include provisions that take precedence over these general terms and conditions.
6.4. Notwithstanding Article 6.1 above and subject to the full payment by the Client of all invoices issued by SKINN, the latter grants the Client, who hereby accepts, an exclusive, non-transferable and non-sublicensable licence to use the creations developed by SKINN in relation to the Agreement and/or the Services and protected by SKINN’s intellectual property rights as part of its economic activities.
6.5. The licence referred to in Article 6.1 shall only apply to the use of the creations in question by the Client itself and, if multiple designs are produced by SKINN in relation to the Services, to the design selected by the Client.
7. PROCESSING OF PERSONAL DATA
7.1. The applicable data protection regulations apply to the processing of personal data by SKINN in relation to the Agreement and/or the Services. Under the aforementioned data protection regulations, the Client shall act as the data controller. As such, the Client shall specify the object and means for the processing of personal data. SKINN shall only act as a processor under the aforementioned data protection regulations and shall only process data on behalf of or at the instruction of the Client.
7.2. The Client and SKINN hereby declare that they shall observe the data protection regulations. The Client shall fully indemnify SKINN for the principal sum, interest and (judicial and lawyer) fees involved in all claims or demands by third parties in relation to the data protection regulations.
7.3. The Client, as the data controller, and SKINN, as the processor, shall in any case conclude a processing agreement in the sense of Article 28 of the Regulation (EU) 2016/679 (the “GDPR”) that shall be applicable to the processing of personal data under the Agreement and/or the Services and that shall be attached to the Agreement as an appendix (the “Processing Agreement”).
The Client acknowledges and accepts that SKINN may refer to and use the name, brand, trademark, logo and/or marketing material of the Client, as well as the Services provided by SKINN to the Client, for its own marketing purposes.
9. TERMINATION OF THE AGREEMENT
The Agreement may be terminated at any time without prior judicial intervention and with immediate effect:
(i) by mutual agreement between both parties; and (ii) in case of serious default by the Client. In relation to this Article, failure to pay (on time) in accordance with Article 2.2 shall be considered a serious default.
10. APPLICABLE LAW AND COMPETENT COURT
This Agreement shall be interpreted and governed in accordance with the laws of Belgium. The courts of Bruges (Bruges division) shall be exclusively competent to hear all disputes arising from or relating to this Agreement.