ARTICLE 1 – SCOPE, ACCEPTANCE AND VALIDITY
- These general terms and conditions (hereinafter referred to as the “Terms and Conditions”) govern the contractual relationship between the company CM-ECREATE SRL having its registered office at 402 Avenue de Tervueren, 1150 Woluwe-Saint-Pierre (Belgium) and registered in Belgium with number 0666.930.329 (hereinafter “CM-ECREATE”) and its client (hereinafter “Client”). They apply to products and/or services provided by CM-ECREATE to Client (hereinafter the « Mission »).
- Acceptance of estimate delivered by CM-ECREATE necessarily implies the Client’s full acceptance of these Terms and Conditions who are attached and available on the following link: http://milkywaysblueyes.com/
- These Terms and Conditions constitute the law between the parties and apply to all Clients, who are deemed to have accepted them as such. They may be supplemented by specific terms contained in CM-ECREATE’s commercial documents including the order form. In case of conflict or contradiction between measured contained in these documents, the specific terms shall prevail.
- Terms and Conditions shall apply and prevail over any Client’s document which CM-ECREATE has not expressly accepted in writing and without constraint of. In any event, all stipulations to the contrary made by the Client shall not be, under any circumstances, enforceable on CM-ECREATE.
ARTICLE 2 – PROCESS OF ORDERING
- The contract between the parties comes into force by the written agreement on the estimate by the Client.
- In the absence of any contract documents, the writings including emails between parties may prove the order of the Mission by the Client.
- Unless otherwise expressly specified, estimates are valid for 30 calendar days from the date of issue. All prices are quoted in euros, exclusive VAT or any other cost.
- Unless otherwise expressly stipulated in writing, any acceptance of the offer by the Client is irrevocable and will give rise to the full payment of the price of the Mission. Accordingly,
any cancellation or termination for any reason whatsoever shall give the right to the payment of the total price, without prejudice to the right of CM-ECREATE to claim the compensation for any damages. Any termination shall be by written notice to CM-ECREATE.
- The estimate of the Mission is established on the basis of the information initially provided by the Client. Any modification of the Mission requested by the Client or due to new informations made known to CM-ECREATE is subject to CM-ECREATE’s express written agreement with the right to modify the original specific terms such as the price, delivery dates, etc.
- Any additional or complementary version of an element/creation of the Mission will be subject of a new estimate, or failing that will be invoiced at 20% of the price of the initial offer.
- Unless expressly instructed in writing by the Client, CM-ECREATE will have total creative freedom regarding the content created within the framework of the Mission, without having to obtain prior approval from the Client.
ARTICLE 3 – DELAY AND DELIVERY
- Delivery times are provided for information purposes only. Timeframes shall start on the working day following that of the receipt of complete information and elements from the Client to achieve the Mission.
- If the execution of the Mission is delayed due to the Client’s decisions or errors (e.g. poor coordination of our work, intervention of third parties, etc.), CM-ECREATE reserves the right to extend the delay.
- In no case shall a delay in performance give rise to any indemnity, damages or termination of the contract or suspension of the Client’s obligations.
- Failing any complaint of the Client within 8 calendar days following the end of the Mission, the Mission shall be deemed irrevocably accepted by the Client and will preclude any future claim. If the exact time of the completion of the Mission cannot be reasonably estimated or if the Mission is ongoing, the period of 8 calendar days shall start from date of invoice issue.
- In case of justified complaint or refusal within this period, CM-ECREATE, at its choice, shall deliver a second draft or the necessary adjustments of the element/creation demonstrated non-conformity or refund the price paid for this element. No other compensation/indemnity will be granted to the Client.
- Without prejudice to Article 7, the use of elements/creations resulting from the Mission shall automatically lead to the approval of the Mission. The non-conformity of a part of the elements/creations resulting from the Mission does not entitle the Client to refuse the whole.
ARTICLE 4 – PRICE AND PAYMENT
- Unless otherwise expressly specified, all the expenses related to the execution of the Mission (travel, accommodation, meal expenses, etc.) are cover by the Client in addition of the price of the Mission.
- Unless expressly agreed otherwise, payments shall be made as follows:
- a deposit equivalent to 50% of the total amount set out in the final order form.
- the remaining amount at the end of the Mission.
- Payments will be made on the due date mentioned on the invoice by Bank Account transfer.
- In the event of the non-payment on the due date, contractual interest fixed at 12% per year of the unpaid amount of the invoice will be due automatically and without prior notice. In addition, a flat-rate indemnity fixed at 12% will be applied on the unpaid amount of the invoice, with a minimum of 75 €.
- In the event of late payment or default of payment, CM-ECREATE reserves the right to suspend or terminate the contract and may claim and exercise its right of retention on creations and material created without prior notice.
- Without any written claim by the Client registered letter, an invoice shall be regarded as accepted 10 calendar days after being sent. In the event that Client disputes any portion of a CM-ECREATE invoice, Client will pay the undisputed portion of the invoice.
ARTICLE 5 – LIABILITY – FORCE MAJEURE
- CM-ECREATE is bound only by an obligation of means. CM-ECREATE shall not be liable to Client for any delay in performing or for any failure to perform or poor performance of the Mission attributable to acts of the Client, Force Majeure or any events, even predictable, beyond its control.
Force Majeure is defined as any unforeseeable and insurmountable events affecting the performance of CM-ECREATE including technical or IT issues, total or partial loss or destruction of CM-ECREATE’s computer system or its database, failure of subcontractors or providers, failure of the Internet or data storage system, failure of the telecommunications network, loss of connectivity to the Internet or to the telecommunications network, earthquakes, fires, floods, epidemics, acts of war or terrorism, strikes, lockouts, embargo, insurrections and riots, a power supply shutdown, a fact or decision of a third party when this decision affects the proper performance of the Mission or any other cause beyond the reasonable control of CM-ECREATE.
- In those cases, CM-ECREATE shall be entitled to terminate the agreement or to suspend the execution of the Mission for as long as the situation persists without the Client having any claim to compensation.
- CM-ECREATE shall not be liable to Client for any material or immaterial, direct, indirect or consequential loss or damage arising in the provision of the Mission, including, but without limitation, loss of revenue, profits, anticipated savings, business or goodwill and loss, reputational damage, corruption or destruction of data, etc.
- CM-ECREATE shall not be liable for disputes arising out after the end of the Mission.
- In any event and provided that the responsibility of CM-ECREATE has been proved, its liability for damages shall be limited to the foreseeable typical damage, up to a maximum of the invoiced price for the Mission.
- CM-ECREATE is not responsible for the materials transmitted by the Client, who undertakes to insure against all types of risks (theft, fire, deterioration …).
ARTICLE 6 – OBLIGATIONS AND WARRANTIES
- CM-ECREATE undertakes to provide all care and diligence necessary in the execution of the Mission (obligation of means).
- In addition to the full payment, the Client must co-operate with CM-ECREATE in particular by sending immediately complete information and elements necessary to complete the Mission.
- In the event of full or partial non-execution of the Client’s obligations within 30 day notice period, CM-ECREATE’s right to consider the contract terminated automatically without formal notice to the sole prejudice and detriment of the Client.
- Unless otherwise expressly stipulated in writing, the Client warrants being the owner and/or that is legally authorized to use any content (typography, photographs, drawings, models, music, etc.) transmitted to CM-ECREATE and being solely responsible for their use by CM-ECREATE. The Client shall indemnify and keep indemnified CM-ECREATE for any claim by a third party in respect of damages.
ARTICLE 7 – INTELLECTUAL PROPERTY
- Unless explicitly agreed in writing, CM-ECREATE retains ownership of all intellectual property rights (copyrights, trademark, patent, design and model) on the creations and all material created by CM-ECREATE in execution of the Mission, including text, captions, comments, works, illustrations and images, etc., whether visual or audio. The right of publicity belongs to each person pictured in the creations realized for the Mission.
- Any reproduction, in whole or in part, of the creations is strictly prohibited without prior written permission of CM-ECREATE, both during and following the expiry or termination of the contract. Any grants of rights shall be subject to a specific written agreement.
- The original materials and supports from the creations realized for the Mission remain the property of CM-ECREATE who, unless otherwise agreed, may proceed to their destruction or deletion after the end of the Mission.
- The Client authorises CM-ECREATE to exploit and communicate in all or in part the Mission and the creations to the public on its website, social networks, promotional materials, etc. In this context, CM-ECREATE is authorized to reproduce the Client’s trademarks and other distinctive signs.
ARTICLE 8 – CONFIDENTIALITY
Except for accessible public information, any information received, exchanged or transmitted between the parties under the Mission is strictly confidential for a 5 years period following the end of the Mission.
ARTICLE 9 – PERSONAL DATA PROTECTION
- In order to be able to fulfil the Mission, CM-ECREATEprocess Client personal, as for example Client identification and invoice data. CM-ECREATE is committed to safeguarding the privacy of the data in compliance with Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC (General Data Protection Regulation) and the Belgian law of July 30, 2018, on the protection of individuals with regard to the processing of personal data.
ARTICLE 10 – APPLICABLE LAW AND JURISDICTION
- These Terms and conditions, and more generally the contract which Client concludes with CM-ECREATE, are subject to Belgian law.
- All disputes relating to their validity, interpretation and/or performance come within the exclusive jurisdiction of the French speaking courts of the judicial district of Brussels.
ARTICLE 11 – FINAL PROVISIONS
- The fact that CM-ECREATE, at any given moment, does not rely upon or enforce any particular provision in these Terms and Conditions or in the contract shall not be considered as a waiver to any of the said Terms and Conditions for the future.
- If any part of the Terms and Conditions or of the contract is held unlawful or unenforceable that part shall be interpreted as far as possible in line with the original intent of CM-ECREATE, and without affecting the validity of the other provisions.
402 Avenue de Tervuren
BE0666 930 329
Mise à jour le 07/03/2022