General terms and conditions
Last update September 2019
The general terms and conditions are applicable to all offers, in the form of an SOW or otherwise, and agreements of B.V.B.A. APPMIRAL (hereinafter “APPMIRAL”), having its registered office at Scheldestraat 11, 2000 Antwerp, Belgium, registered in the Belgian Crossroad for Enterprises with number 0835.673.410, orally or in writing, concerning the delivery of Services and/or Deliverables to clients, safe as explicitly agreed otherwise in writing by APPMIRAL.
The client acknowledges to be informed of and to have accepted these general terms and conditions, excluding the application of any general or specific terms and conditions of the client.
Deliverables means all works, products, applications, digital solutions, improvements, adaptations, inventions and innovations which result from the Services carried out by APPMIRAL in execution of its agreements with clients;
End User means the user of the Deliverables; Intellectual Property Rights means all patent rights, trademarks, designs and models, copyrights, rights in databases, proprietary rights in know-how, including trade secrets and other confidential information, and any other form of legally protectable intellectual or industrial property rights under any jurisdiction whatsoever;
Services means the consultancy, development and related services regarding the development, operation, maintenance and performance of digital solutions provided by APPMIRAL to the Client;
SOW or Quotes mean a Statement of Work, all offerings of APPMIRAL holding the specifications of the Services and Deliverables to be delivered to the Client;
Third Party Changes means all changes made or caused by third Parties, such as, but not limited to, third Party application stores, API’s or Client development, that may result in a possible delay in the operation or the availability of the Deliverable(s);
3. Agreement / Order confirmation
All offers, in the form of an SOW or otherwise, by APPMIRAL are without engagement. There will only be a binding agreement between the parties, upon written confirmation of an order by APPMIRAL, or upon execution of the order by APPMIRAL.
Only the directors and the person(s) that is (are) explicitly authorized by one of the latter (such as a dedicated project manager), is (are) entitled to enter into an agreement on behalf of APPMIRAL
4. Term, termination and acceptance
The term of an SOW will be as specified in the SOW. The providing of Services and/or Deliverables will commence on the effective date as mentioned on the relevant SOW and (except where a term is indicated on the SOW) will continue (unless lawfully terminated) until all Services by APPMIRAL have been performed and the Deliverables have been provided to the Client and the Client has paid the fees due in respect of those Services and the resulting Deliverables.
Where a delivery term is indicated in the relevant SOW, this is only indicative and without engagement to APPMIRAL. APPMIRAL will make best efforts to respect such term.
Where the Client is requested to provide APPMIRAL with information, specifications, purchase orders and /or any invoice data required for the internal acceptance procedure of the Client, or instructions for permitting the execution of the SOW, he will do this in a timely manner and with sufficient detail, accuracy and completeness as reasonably required by APPMIRAL. If this information is not provided in accordance with the provisions of these terms and conditions, APPMIRAL will be entitled to postpone the delivery of Services and/or Deliverables until the required information is provided.
Without prejudice to its other rights and remedies, either party may terminate an SOW with immediate effect by written notice to the other party by registered mail, without prior notice, notice period and/or court authorization, if the other party is in material breach of the general terms and conditions and either (i) that breach is incapable of remedy within a reasonable period, or (ii) the party has failed to remedy the breach within thirty (30) days after receiving written notice.
Without prejudice to its other rights and remedies, either party may terminate an SOW with immediate effect by written notice to the other party by registered mail, without prior notice, notice period and/or court authorization, upon the following events:
(i) a court order is made for the winding up of the other party;
(ii) an effective resolution is passed for the winding up of the other party (other than for the purposes of amalgamation or reconstruction);
(iii) the other party has a receiver, manager, administrative receiver or administrator appointed in respect of it;
or (iv) the other party is unable to pay its debts as they fall due or its assets are worth less than its liabilities on a balance sheet basis.
The client shall promptly inspect all Services and/or Deliverable(s) upon receipt (whether physically or electronically) for defects. The client shall notify APPMIRAL via e-mail of any nonconformity or defect within fifteen (15) days of receipt. If not, the Services and/or Deliverable(s) shall be deemed to be accepted by the client.
The client acknowledges that the nature of a single-year and a multi-year partnership is auto-renewable at the end date of the contract.
All our contracts can be canceled, without an exit-clause, by simply sending a prior written notice (by letter or mail to email@example.com), at least 45 days before the end date of the contract. The annual fees are being stipulated by the SOW or Quote, if not the pricing for the Appmiral products (Improve, Extend, Augment) will be published on our website.
All prices are established in EURO or in the currency that is agreed upon in the relevant SOW.
Unless parties have agreed otherwise, Services and Deliverables will be provided by APPMIRAL at an annual flat-rate price agreed upon by the parties in the relevant SOW. Possible changes in the Deliverables and additional Services requested by the client will be subject to the signing of a new SOW or will be invoiced in accordance with the rates or prices as applicable at the time of such request.
The VAT, other taxes and possible costs related to the Services and/or the Deliverables, provided by APPMIRAL, including all taxes and possible costs that have been implemented since the effective date of the relevant SOW, are charged to the client.
APPMIRAL will invoice the Client in accordance with the payment provisions specified in the relevant SOW. Invoices will be paid by the Client to APPMIRAL within 15 days from the invoice issue date, only by means of a bank transfer on the account number mentioned on the invoice.
Complaints related to the invoice are only receivable in case of a detailed notification of the complaint(s) referred to by the Client to APPMIRAL in writing within ten (10) working days after invoice issue date (without any acknowledgement on the rightness of such dispute on the part of APPMIRAL). If an invoice is not disputed in accordance with the provisions of this article, it is deemed to be accepted by the Client without reserve. The part of the invoice that is not disputed, will be paid immediately by the Client.
Insofar the invoice concerns Services which have already been finalised, payment by the Client of such invoice will entail the Client’s approval of the invoiced Services, except in case of contrary notification delivered by registered mail within ten (10) working days of receipt of the invoice.
In case the invoice is not paid entirely or partially on expiry date, all other invoices (irrespective of their expiry date) will be immediately and automatically due. In such case, interest will be due (without prior notice) at a rate of 1% per month as from the invoice date. Any started month will count as a complete month. Moreover, the client will have to pay automatically and without prior notification and without further formality a lump sum of 10% of the invoice price, VAT excluded, with a minimum of 250 EUR, without prejudice to the right of APPMIRAL to claim an indemnity equal to its actual losses. Moreover, APPMIRAL shall be entitled to suspend the execution of the SOW until receipt of all due amounts.
8. Intellectual property
All Intellectual Property Rights (i) arising solely from the separate invention or efforts of APPMIRAL performing under an SOW, or (ii) held by APPMIRAL on the commencement date of an SOW, shall remain the sole and exclusive property of APPMIRAL, and except as expressly provided in these terms and conditions or as may be necessary for performing hereunder, the client shall have no right or license to use any such Intellectual Property rights other than the use and commercial exploitation of the Deliverable(s) for the (limited) duration, as mentioned in the relevant SOW.
All Intellectual Property Rights held by the client on the commencement date of an SOW, shall remain the sole and exclusive property of the client, and except as expressly provided in these terms and conditions or as may be necessary for performing hereunder, APPMIRAL shall have no right or license to use any such Intellectual Property rights other than during the provision of Services to the client.
Consequently, the terms and conditions nor any SOW between APPMIRAL and a client can affect or directly/indirectly result in the transfer of Intellectual Property Rights to the client. The client expressly acknowledges that APPMIRAL can never be denied the right to use for other projects and purposes any APPMIRAL software, tools, methodology, experience or know-how used and/or gained in the framework of an SOW.
The parties undertake to keep strictly confidential (1) (the existence of) any agreement and any preceding projects, as well as (2) all information and documents received from the other party or generally obtained within the scope of an SOW (hereinafter “the Confidential Information”) and the parties shall not in any way disclose to third parties, directly or indirectly, the Confidential Information without the written prior consent of the disclosing party.
The above commitment does not cover the Confidential Information pertaining to the public area at the time of its disclosure.
Upon termination of an SOW, the receiving party shall remit to the disclosing party the Confidential Information and all documents, plans and other materials received from said disclosing party.
APPMIRAL guarantees that the Deliverable(s) conforms in all material respects to the specifications in the relevant SOW and offers a commercial warranty of 3 months from delivery for all inherent defects to the Deliverable(s), without prejudice to the limitations below. Any other warranty, whether express or implied, in relation to the Services and/or Deliverable(s) is excluded, to the extent legally permitted.
Limitation of Warranty
The client acknowledges that this warranty shall not apply to any defects due to external causes, such as, without limitation:
● natural disasters, including smoke, water, earthquakes or lightning;
● electrical power fluctuations or failures;
● the neglect or misuse of the Deliverable(s) or other failure to comply with the instructions set forth in the SOW;
● a correction or modification of the Deliverable(s) not provided or approved in writing by APPMIRAL;
● changes in third party dependencies.
APPMIRAL provides no warranties of any kind in relation to:
● the merchantability and/or fitness of any Deliverable(s) for a particular purpose (other than the one mentioned in the SOW);
● the compatibility of any Deliverable(s) with the software and/or the hardware of the client and/or any third party (other than the ones mentioned in the SOW);
● the expectation of the client that the Deliverable(s) will satisfy or may be customized to satisfy all or any of client’s specific requirements (other than the ones mentioned in the SOW);
● the uninterrupted or error-free use of the Deliverable(s) by the client or the End User. The client acknowledges that this warranty is limited to defects that are found to be due to APPMIRAL’s development or testing procedures and not by the client or third Party developed applications or solutions with the Deliverable(s).
11. Limited Liability
Each of the parties will be liable for their own actions or negligence. APPMIRAL can only be held liable for damages caused directly by the Services and/or Deliverables (as they were delivered to the client), due to APPMIRAL’s actions or negligence, excluding any liability for indirect fees, costs, loss of profits etc.
The liability of APPMIRAL is in any case limited to the amount which was invoiced by APPMIRAL in the then current year of the relevant SOW.
12. Absence of exclusivity
APPMIRAL, nor the client, are bound by any exclusivity obligation.
Within the scope of an SOW, personal data of End Users may be collected and stored by APPMIRAL on behalf of the client. APPMIRAL will respect the privacy of each End User.
The personal data will be processed in accordance with the applicable legislation concerning the protection of personal data (including the European Directive 95/46/EG dated on the 24th of October 1995 and the Belgian Act of the 8 th of December 1992).
APPMIRAL will not be liable for any damages, losses, theft, misuse, unauthorized access, disclosure, alteration, or destruction of personal data of End Users (directly or indirectly) caused by the Client.
14. General Provisions
The nullity or non-applicability of one or more provisions of these general terms and conditions will not have any effect on the validity or enforceability of the other provisions, which will remain fully applicable.
APPMIRAL is authorised to subcontract certain or all of its obligations under an SOW to a designated third party, and ensures that these general terms and conditions also apply to such third party subcontractor.
15. Applicable law & jurisdiction
Belgian Law is applicable to any dispute related to these terms and conditions and any SOW.
The Antwerp courts will be exclusively competent for any dispute related to the closure, interpretation and execution of the terms and conditions. Before starting legal proceedings before the competent court, parties will however try to find an amicable settlement.