GENERAL TERMS AND CONDITIONS OF YONDR
These terms and conditions shall apply to each quotation, offer, and agreement concluded between yondr Agency BE bvba (having its registered office at 9120 Beveren, Grote Markt 19, CBE number 844.533.567, hereinafter referred to as “YONDR”), subject to reservation of changes that may be expressly agreed between the concerned parties. The acceptance of offers and/or invoices of YONDR shall imply the unconditional acceptance of these general terms and conditions, irrespective of the terms and conditions of the customer, with the exception of those that have been expressly accepted in writing by YONDR.
1.1. The current general terms and conditions shall apply to the goods and services supplied and/or rights granted by YONDR.
1.2. The present general terms and conditions shall systematically apply to each commercial proposal of YONDR to the customers, and the customer specifically confirms that it is aware of these general terms and conditions. Consequently, each order placed with YONDR necessarily implies the full acceptance of the present general terms and conditions by the customer, as a substantial and decisive condition of the order.
1.3. These general terms and conditions, supplemented by the agreement if any concluded with YONDR containing the special terms and conditions and the licensing conditions relating to intellectual property rights, constitute the legal framework for the parties and shall apply to all the customers of YONDR, who shall be assumed to accept the terms and conditions as such. They shall take precedence over any other provision that is not expressly and unconditionally accepted by YONDR in writing. In no case shall possible conflicting provisions drawn up by customers of YONDR be imposed on YONDR.
1.4. The fact that YONDR, at any given time, does not invoke or enforce certain provisions in the present general terms and conditions, cannot be regarded as a waiver of the right under such provisions for the future.
1.5. Each customer of YONDR is prohibited to reproduce, communicate, make available or to use any symbol, work, performance, or any other object of intellectual property or other intellectual property rights of YONDR in any manner whatsoever, without having obtained the prior and express written consent of YONDR for the same. YONDR reserves the right to object to such unlawful use and wherever applicable, to demand damage compensation. The same shall apply to any use that is or may be incompatible with the image of YONDR, or with any right that it may have granted or that may have been granted to it, or to any use that could be regarded as unfair competition.
2.1. Enquiries for deliveries or orders that are sent to YONDR by potential customers by mail must be confirmed in writing by YONDR through an offer (by post, fax, e-mail) addressed to the potential customer. YONDR reserves to itself the right to split, or to not split, the offer according to the various phases of the creative process.
2.2. The potential customer shall have 30 (thirty) days to accept the offer in writing before it expires, unless expressly specified otherwise in the offer.
2.3. The offer may only be validly accepted by the potential customer by sending the signed copy of the offer (including the general terms and conditions) to YONDR by post, fax or e-mail.
2.4. YONDR shall not be bound by any offer or quotation if the customer could reasonably have been expected to know that the concerned offer or quotation, or any part thereof, contained an obvious mistake or error.
2.5. A composite quotation shall not oblige YONDR to execute a part of the order for a corresponding part of the specified price.
2.6. Offers or quotations shall not automatically apply to future orders.
3.1. The creative process for the development and execution of an order by YONDR may comprise several phases. A distinction shall be made between ‘time’ and ‘materials’. A separate working method and pricing shall apply to each phase. The “VR Concept phase” concerns the conceptualisation and consideration of new products or services by YONDR, in collaboration with the customer. The “VR shoot phase” concerns the shooting of VR footage. The “VR production phase” concerns the development and effective creation of products or services by YONDR, in collaboration with the customer. In addition, project management (PM) is also provided during the course of the project. “VR Toppings” concerns each extra service created that is necessary to fulfil the order and to execute and distribute the same properly. The term ‘materials’ shall include all components with which the products or services created by YONDR can be made available, either online (web/platform) or through a third party appointed by YONDR, to the customer, both with regard to production as well as distribution.
3.2. Before the execution of the project, YONDR shall:
3.2.1. invoice the customer for an advance equal to 50% of the total price of the project (‘time’). ‘Material’ will always be pre-financed to the extent of 100%. The payment period for the advance invoice shall be seven (7) days.
3.3. During each phase, YONDR shall perform the agreement according to its best understanding and capacity and in accordance with the requirements of good workmanship.
3.4. The customer recognises that the execution of the various phases of the order shall require regular consultations between YONDR and the customer. During the execution of each phase of an order, YONDR shall prepare draft designs at various points in time and shall present the same to the customer who, on the basis of the same, shall either notify his acceptance for further development or give YONDR his suggestions for changes. After the customer has notified YONDR of his choice in writing (fax, post, e-mail), there shall be a maximum of (2) ‘change rounds’ in order to arrive at a final result, based on the related remarks made by the customer. If after the aforesaid change rounds, the customer wishes to make further changes, the parties shall agree on the conditions subject to which such changes shall be made (price, timing, etc.).
3.5. The customer recognises that, in order to ensure an efficient collaboration, any question, remark, suggestion or version delivered by YONDR of the draft designs as per the order, shall be deemed to have been accepted by the customer in the absence of a reply from the customer within five (5) working days after dispatch of the same by YONDR. Additional charges may be levied for any changes made to the order by the customer after the aforesaid real or assumed acceptance.
3.6. Any additional or new order requested by the customer shall give ground for a new offer and contract between the parties.
3.7. If an order is cancelled after the approval of the offer by the customer, YONDR shall have the right to the payment of the compensation agreed for the order as a whole.
3.8. The use by the customer of a part of the goods or services delivered shall imply his approval of the whole of the same.
3.9. If the order is not split up into well-defined partial orders, but a clearly distinguishable part of it has been executed and completed by YONDR, YONDR shall be entitled to invoice such part to the customer on a pro rata basis at that very time (without YONDR having fulfilled the entirety of the contract).
3.10. If a specific phase is executed in various stages, YONDR can suspend the execution of components that form part of a subsequent step until the customer has approved the results of the preceding steps in writing.
3.11. YONDR shall have the right to commission third parties to carry out certain work.
3.12. If YONDR or third parties engaged by YONDR carry out work under the order at the customer’s location or at a location designated by the customer, the customer shall provide the facilities reasonably desired by those employees and/or appointees, free of charge.
3.13. If a project continues for longer than thirty (30) days (according to project plan) counting from the date of acceptance of the offer by YONDR or the net value of the total project exceeds €10,000, YONDR shall after completing the “VR Shoot” phase”, raise an invoice for all the preceding phases, minus the advance mentioned in Clause 3.2.1. (50%)
3.14. The customer shall ensure timely delivery to YONDR of all data, documents, files, etc. that YONDR states are necessary, or in respect of which the customer may reasonably be expected to understand to be necessary for the execution of the order.
3.15. Each order accepted by YONDR may be terminated by YONDR at any time. In such case, YONDR undertakes to refund all the amounts already paid to it by the customer. The customer recognises that in such case, YONDR cannot be held responsible for any direct or indirect damage suffered by the customer.
3.16. The customer shall be bound to immediately inspect the products and/or services delivered, after receipt. Rejections or complaints in this regard must be notified to YONDR by registered letter within 8 (eight) days after the delivery of the same. After the aforesaid period of 8 (eight) days, the delivery of the works, shootings or performances shall be deemed to have been accepted and to be in conformity with the order.
3.17. If after completion of the delivery of an order, the customer wishes to increase the quantity of the products or services delivered (for example, the customer wishes to increase the number of modified visualisation tools used), he shall request a new offer.
4.1. YONDR shall have the right to suspend the fulfilment of the obligations or to terminate the agreement (1) if the customer fails to fulfil his obligations under the agreement, or to do so in time; (2) if after concluding the agreement, certain circumstances that have come to the knowledge of YONDR that give ground for YONDR to fear that the customer shall not fulfil his obligations under the agreement; (3) if at the time of concluding the agreement, the customer is requested to provide security for the fulfilment of his obligations under the agreement, and such security has not been provided or is insufficient, or (4) if due to the delay on the part of the customer, YONDR can no longer be expected to fulfil the agreement subject to the originally agreed terms and conditions.
4.2. Furthermore, YONDR shall have the right to terminate the agreement if circumstances arise of such a nature that the fulfilment of the agreement is impossible or if such other circumstances arise that the continuation of the agreement without any changes cannot reasonably be expected of YONDR.
4.3. If the agreement is terminated, the claims of YONDR against the customer shall become immediately due and payable. If YONDR suspends the fulfilment of its obligations, it shall however retain its claims under the law and the agreement.
4.4. If YONDR suspends or terminates the agreement, it shall not, in any manner be bound to compensate for damage and costs that may arise in this connection, in any manner whatsoever. 4.5. If the termination can be attributed to the customer, YONDR shall have the right to compensation for the damage, including costs that arise directly and indirectly as a result of the same.
4.6. If the customer does not fulfil his obligations under the agreement and such non-fulfilment justifies the termination of the contract, YONDR shall have the right to terminate the agreement immediately and with immediate effect without any obligation on its part to pay any damage compensation or indemnity, while the customer, on the grounds of breach of contract, shall however be bound to pay damage compensation or indemnity.
4.7. In case of liquidation, of (application for) judicial settlement or bankruptcy, or in case of attachment against the customer, or debt restructuring, or any other circumstances due to which the customer can no longer freely dispose of his assets, YONDR shall have the right to immediately terminate the agreement with immediate effect, or to annul the order or agreement without any obligation on its part to pay any compensation or indemnity. The claims of YONDR against the customer shall in such case become immediately due and payable.
4.8. If the customer cancels an order that has been placed, in whole or in part, the customer shall be liable to pay the full compensation for the order to YONDR, together with default interest as well as a lump sum damage compensation of ten percent (10%) as provided in Clause 5 of these general terms and conditions.
5.1. Unless the parties agree otherwise in writing, the full invoice amounts must be paid into the bank account of YONDR within 15 (fifteen) calendar days after the invoice date: ING, IBAN: BE10 3631 0030 4104 BIC: BBRUBEBB.
5.2. Payments shall be made in euros (EUR), unless expressly specified otherwise in the invoice, without deducting any taxes, charges or any similar costs, whether these are fiscal or para-fiscal direct or indirect costs, including in particular VAT and bank charges.
5.3. Invoices must be protested at the most within 10 (ten) working days, counting from the invoice date.
5.4. In case of non-payment of the invoice within the due date laid down, a late payment interest shall be payable with effect from the due date, by operation of law and without the need to issue a notice of default in advance, which late payment interest shall be 1.5% of the unpaid invoice amount, for each month that commences after the expiry of the due date. Similarly, by operation of law and without the need to issue an advance notice of default, a lump sum compensation shall be payable equal to 10% of the outstanding invoice amount (subject to a minimum of €150), without prejudice to the right of YONDR to demand a higher compensation, subject to the provision of proof of higher damage actually suffered. The interest on the due and payable amount shall be calculated starting from the time at which the customer is in default until the time of payment of the full amount that is due and payable.
5.5. If an invoice is not paid on the due date, the outstanding balance of all other invoices, including invoices that are not due and payable, shall by operation of law become immediately due and payable.
5.6. Debt set-off between the parties is expressly excluded.
6.1. The orders to be delivered by YONDR fulfil the conventional requirements and standards that may reasonably be imposed at the time of delivery, and conform to the standards conventional in the media and advertising sector.
6.2. For the finally delivered order, YONDR shall grant the customer a non-exclusive licence, for the entire duration of the copyright, to communicate the entirety of the transferable, worldwide and exclusive ownership and intellectual property rights relating to the order, to the public, either itself or through others, using all currently known and future means of exploitation.
7.1. If YONDR is liable, such liability shall be restricted in the manner specified in this provision.
7.2. If YONDR is liable for any damage, the liability of YONDR shall be restricted to the maximum of the invoice amount of the order, at least to that part of the order to which such liability relates.
7.3. The liability of YONDR shall in all cases always be limited to the amount that shall be paid by its insurer wherever appropriate.
7.4. YONDR shall only be liable for direct damage. For these purposes, “direct damage” shall exclusively mean the reasonable costs to determine the cause and the scope of the damage, insofar as such determination relates to damage within the meaning of these terms and conditions, the reasonable costs if any incurred to bring the defective performance of YONDR into conformity with the agreement, insofar as the same can be ascribed to YONDR, as well as reasonable costs that may be incurred to prevent or limit the damage, insofar as YONDR proves that these costs have limited the direct damage as referred to in the present general terms and conditions. YONDR is in no way liable for indirect damage, including consequential damage, loss of profit, loss of savings and damage due to business interruption.
7.5. In no case shall YONDR be liable for the direct damage that is caused by products that are manufactured and supplied to the customer by third parties engaged by YONDR.
7.6. The limitations of liability contained in the present clause shall not apply if the damage is caused intentionally or through gross negligence on the part of YONDR or its managerial employees.
The customer indemnifies YONDR against claims if any of third parties who suffer damage in connection with the fulfilment of the present agreement and the cause of which can be ascribed to a party other than YONDR. If third parties make a claim against YONDR in this regard, the customer shall be bound to provide YONDR with assistance both before a court of law as well as otherwise and to immediately do whatever may be expected of him in such case. If the customer fails to implement adequate measures, YONDR shall be entitled to implement the same itself, without the need to issue a notice of default. The customer shall be fully responsible for all costs and damage suffered by YONDR and third parties as a result.
9.1. The parties shall keep secret all information that may come to its knowledge during the realisation, fulfilment and/or termination of the agreement. It shall neither disclose such information nor its existence, to third parties, or reproduce, publish or use the information in any manner for its own advantage.
9.2. Each Party shall immediately be notified in writing, and in advance to the extent possible, concerning a disclosure of secret information that is provided under the law or at the request of the authorities.
9.3. When this agreement comes to an end (irrespective of the grounds on which and the manner in which this happens), the parties shall, insofar as applicable, return all secret information to each other, including originals as well as copies of notes, memoranda in general, information relating to each other, and elements relating to the object of the agreement. These notes, memoranda, data and elements shall remain the exclusive property of the party that has prepared them.
9.4. The parties shall ensure that their respective employees and/or independent employees or subcontractors also undertake this obligation and offer the necessary guarantees in this regard. Such undertaking shall be made for the entire duration of the agreement and shall continue to apply even after the agreement comes to an end (irrespective of the grounds on which and the manner in which this happens).
9.5. Any breach of this secrecy obligation shall be deemed by each of the parties as a ground to immediately terminate the agreement to the prejudice of the other party, without the need to observe a termination notice period and without being liable to pay any damage compensation, and without prejudice to the right to itself demand damage compensation.
10.1. YONDR reserves the right to suspend the order in whole or in part, or to annul the same in case of force majeure, which shall be understood to mean: any event that may prevent or delay the order or that makes the creation, processing or delivery of the same economically unprofitable or that limits the normal functioning of the market, and for which YONDR is not liable. Examples of force majeure are, although this list is not exhaustive: measures taken by civil or military authorities, fires, floods, epidemics, quarantine restrictions, wars, embargoes, riots, strikes, terrorist acts, delays in transport, computer theft, damage to computers or hard disks as a consequence of known or unknown viruses, defects or similar electronic problems or other circumstances that make it impossible for YONDR, as a consequence of causes beyond its reasonable control, to deploy the required workforce or to obtain the production resources and equipment from the usual suppliers.
10.2. YONDR can never be responsible for weather conditions, and the customer shall always be responsible for the same. Unpredictable weather. Shooting cannot be conducted in case of rain, hail, snow, dense fog or harsh weather conditions. YONDR and the customer shall jointly look for a suitable shooting day with ideal weather conditions. If the shootings have to continue at a specific place and location, YONDR shall notify the customer concerning the amount of the extra cost that shall be incurred to postpone the shooting to another time if the weather does not permit shooting.
The customer shall pay all the taxes, or compensate YONDR for all levies, indirect or similar contributions, fiscal or para-fiscal, direct or indirect as well as all other specified levies imposed by the law, including VAT on services provided and/or on purchases, delivery and distribution.
12.1. Changes and additions to the general and/or special terms and conditions shall only apply if the same are agreed in writing between the parties.
12.2. In case a clause or a provision of the general terms and conditions is declared to be void or unenforceable, this shall not affect the validity and enforceability of the other clauses or provisions of the general terms and conditions. In such case, both parties shall hold consultations with each other for the purpose of agreeing on new provisions to replace the void or nullified provisions, in which connection due account shall as far as possible be taken of the purpose and intent of the original provisions.
12.3. If there is a lack of clarity concerning the interpretation of one or more provisions of these general terms and conditions, the interpretation shall take place ‘in the spirit’ of these provisions in conformity with the interpretation rules of Section 1156 et seq of the Dutch Civil Code.
12.4. If a situation arises between the parties for which no provision is contained in these general terms and conditions, such situation shall be assessed according to the spirit of these general terms and conditions.
12.5. The parties agree that wherever a notice of default or notification is necessary in connection with this contract, the same may be served without regard to any judicial form by registered letter, and shall have the same effect as the service of document in the judicial manner.
13.1. The present general terms and conditions are subject to the laws of Belgium.
13.2. Disputes or disagreements arising from the content or the implementation of these general terms and conditions shall, in the absence of amicable settlement, be settled by the competent courts in Antwerp, to which the parties accord exclusive jurisdiction, even in case of multiple defendants or proceedings against the guarantor and irrespective of the place from which the customer has placed the order.