SmartEnds.com PLATFORM – GENERAL TERMS OF SERVICE
1. APPLICABILITY – ACCEPTANCE OF THESE TERMS OF SERVICE
1.1 These Terms of Service (the “Terms”) govern the acquisition and use of services on the Smart Ends BV website Smartends.com . By accepting these Terms, either by clicking a box indicating acceptance or by executing an order form or other document referring to these Terms, the Customer agrees that these Terms form part of the agreement between the Customer and Smart Ends BV (“Smart Ends ”) (the “Agreement”).
1.2 SmartEnds and the Customer may individually be referred to as a “Party” and jointly as the “Parties” in these Terms of Service. The definitions as set forth in Article 14 shall apply to these Terms of Service, unless the context necessarily requires otherwise.
1.3 By visiting the Smartends.com website and accessing the information, resources, services, products and tools SmartEnds provides for the Customer, both free and payable, either directly or indirectly (the “Resources”), the Customer agrees to use these Resources only for the purposes permitted by (a) these Terms and (b) applicable laws, regulations and generally accepted online practices or guidelines
1.4 These Terms were last updated on February 16th 2022, and are effective between the Customer and SmartEnds as of the date when the Customer places an order or sets up an account at Smartends.com . These Terms will only be modified upon mutual agreement in writing between SmartEnds and the Customer. Notwithstanding the foregoing, SmartEnds reserves the right to modify unilaterally these Terms to align them with regulatory requirements. SmartEnds will inform Customers about the changes in writing (including without limitation by email), prior to the coming into force of such amendments or changes. The designated person, officer, director, employee, or any other person who represents or acts on behalf of the Customer towards SmartEnds , is deemed to have the necessary mandate to legally and validly bind the Customer.
1.5 In case of any discrepancies between the wording of the Smartends.com website and these Terms, these Terms prevail.
1.6 These Terms as well as all other texts throughout the website are translated from English to other languages. These are unofficial translations and are only provided as convenience translations. They should therefore be interpreted in accordance with their English language versions which will prevail in the event of any discrepancy between the English version and the translation. SmartEnds assumes no liability for any errors, omissions or ambiguities in the translations. Any person or entity choosing to rely on the translated content does so at their own risk. When in doubt, please always refer to the official English language version.
1.7 These Terms (the “Terms of Service”) shall apply to all Quotations and agreements provided and entered into by Smart Ends BV, having its registered office at Volmolenstraat 52, 9000 Ghent, Belgium and registered with the Belgian Crossroads Bank for Enterprises under company number 0673.512.273 (RLE Ghent, division Ghent) (hereinafter “Smart Ends BV”) and the Customer, except when other contractual arrangements are expressly made between Binders Media and the Customer. The general terms and conditions of the Customer are not applicable and are therefore expressly excluded, even if such general terms and conditions would contain a similar clause. In the event of any conflict or inconsistency between the provisions of these Terms of Service and the provisions of any Agreement, the provisions of the latter shall prevail.
2.1 Quotations shall remain valid for a period of thirty (30) calendar days following the Quotation date and are exclusive of VAT and other taxes, unless explicitly stated otherwise. Quotations are only considered to be binding for Binders Media upon approval in writing by the Customer and Binders Media.
3. GRANT OF LICENSES
3.1 Use of the Smartends.com Platform
a) Subject to the Terms set forth herein and the timely payment of the Fees by the Customer, Binders Media grants the Customer a revocable, personal, restricted, non-exclusive, non-transferable, non-assignable license, without the right to sublicense during the Term to access and use the Smartends.com Platform for the Customer’s Internal Business Purposes in accordance with the Documentation (the “License”). The extent of the licenses granted under these Terms is restricted to the scope expressly set forth herein, and there are no implied licenses under these Terms. Binders Media reserves any right not expressly granted to the Customer hereunder. At the sole discretion of the Customer and pursuant to the grant of the License, Customer’s Affiliates are equally permitted to access and use the Smartends.com Platform provided that (i) they are an Affiliate of the Customer and (ii) the access or use of the www.Smartends.com Platform is necessary based on the Customer’s Internal Business Purposes. In such case, the Customer remains solely responsible towards Binders Media with respect of the usage of the Smartends.com Platform by its Affiliates and for the payment of the corresponding License Fees in accordance with these Terms. For the avoidance of doubt, upon termination of the ties of affiliation between Customer and Affiliate, the Affiliate’s right to access and use the Smartends.com Platform will terminate automatically and immediately.
Additionally, the Customer acknowledges that the Smartends.com Platform shall be hosted by Microsoft Azure, when hosting services are provided on account of Binders Media. The Customer agrees to comply with any specific terms of Microsoft Azure that might apply. The Customer shall indemnify and hold harmless Binders Media for any non-compliance with such terms. Binders Media shall not be responsible for any non-availability of the Smartends.com Platform to the extent due to Microsoft Azure.
c) Binders Media reserves the right to make, in its sole discretion, changes and updates to the functionalities of the Smartends.com Platform from time to time without any prior notification to the Customer, provided that Binders Media shall not change any material functionalities of the Smartends.com Platform without prior notification to the Customer. Binders Media does not ensure that Services on the currently licensed SmartEnds.com Platform, shall remain compatible with any new release, which is used or will be used by the Customer. To the extent that one or more Services are not fully compatible with any new release or version of the SmartEnds.com Platform, Binders Media can agree to make changes as may be required to make them compatible with such new release or version. Such changes will be subject to a separate fee. Customers shall be obliged to follow the life cycle of the SmartEnds.com Platform and implement any new releases or versions.
a) The Customer is not allowed to use the Smartends.com Platform or any part thereof in a manner not expressly authorized by Binders Media. The usage rights of the Smartends.com Platform and any usage restriction are set out in the Documentation.
b) Within the limits of the applicable law, the Customer is not permitted to (i) make the SmartEnds.com Platform available or sell or rent the SmartEnds.com Platform to any third parties; (ii) adapt, alter, translate or modify in any manner the SmartEnds.com Platform; (iii) sublicense, lease, rent, loan, distribute, or otherwise transfer the SmartEnds.com Platform to any third parties; (iv) decompile, reverse engineer, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the SmartEnds.com Platform, except and only to the extent that such activity is expressly permitted by any applicable mandatory law notwithstanding this limitation; (v) alter, remove, or obscure any copyright notice, digital watermarks, proprietary legends or other notice included in the SmartEnds.com Platform; (vi) intentionally distribute any virus, or other items of a destructive or deceptive nature or use the SmartEnds.com Platform for any unlawful, invasive, infringing, defamatory or fraudulent purpose; or (vii) remove or in any manner circumvent any technical or other protective measures in the SmartEnds.com Platform. The Customer is obliged to report to Binders Media in writing any infringement on these usage rights within ten (10) days after the infringement takes place.
c) Binders Media shall always have the right to set up an audit to investigate whether the SmartEnds.com Platform is used in accordance with the Documentation.
3.3 License by the Customer to Binders Media
a) By uploading, providing or otherwise using any Customer Content on or through the SmartEnds.com Platform, Customer grants Binders Media a non-exclusive, royalty-free, worldwide, sublicensable, transferable and fully paid up license to use, copy, store, modify, transmit and display the Customer Content to the extent necessary to perform its obligations under these Terms, in particular to provide, exploit and maintain the SmartEnds.com Platform
.b) Binders Media reserves the right, but is not in any manner obliged, to review and remove any Customer Content which is deemed to be in violation with the provisions of these Terms of Service or otherwise inappropriate, any rights of third parties or any applicable legislation or regulation.
4. SERVICES – SUPPORT
Binders Media shall provide the Services, if any, as specified in any Quotation and/ or Proposal and/ or Order Form delivered to the Customer and in consideration for the Service Fee.
4.2 Support and maintenance
In consideration for the Support Fee, Binders Media will provide the Support services to the Customer and the Affiliates of the Customer as specified in the Proposal and/ or Order Form. Binders Media will make all reasonable efforts to respond as quickly as possible to any questions.
Except for the reserved right to make, in its sole discretion, changes and updates to the functionalities of the SmartEnds.com Platform, maintenance in respect of the Services or Deliverables is not included in the License Fee. The Customer can however request Binders Media to provide Services, in respect of maintenance or Support, for an additional fee. In such case, a separate agreement will be concluded and approved in writing by both Parties which details the exact scope of the maintenance and/or support Services.
If applicable, Binders Media shall provide the services mentioned in this Terms in complete independence and shall plan its activities as it sees fit. This independence constitutes an essential element of the agreement, without which the Parties would not have concluded it. In no case shall the agreement be interpreted as an employment contract between the Customer and Binders Media or its employees.
5. FINANCIAL TERMS
a) During the Term and as a consideration for the License, the Customer agrees to pay the License Fee. The License Fee shall include normal tech support (such as questions regarding the technical functionalities, features, design and usability), any other support shall be subject to the applicable Support Fees. b) All License Fees shall be invoiced by Binders Media in accordance with this Article 5 or according to a specific schedule as agreed upon by the Parties in the Quotation.
a) The License Fees are payable in advance and will be invoiced on a yearly basis prior to the beginning of the next Renewal Term (for the avoidance of doubt, the License Fees payable for the Initial Term shall be invoiced immediately following the approval in writing by the Customer of a Quotation). Any amounts due pursuant to this Terms shall be payable within thirty (30) calendar days following the date of the respective invoice. The Customer expressly acknowledges and agrees that any upfront payments made pursuant to this Terms are final and non-refundable. If the Agreement is terminated early, the Customer shall not be entitled to a refund whatsoever.
b) Any Support Fees or Service Fees shall be invoiced monthly on a time and material basis and are payable within thirty (30) calendar days following the date of invoice.
c) In the event the Customer disputes any portion of an invoice, the Customer shall notify Binders Media of such disputed amount and the basis for the Customer’s dispute within fifteen (15) calendar days from the invoice date (failure of which shall result in the invoice being irrevocably deemed accepted by the Customer), together with any appropriate information supporting the Customer’s position, and the undisputed portion shall be paid as provided herein.
d) In the event any sums due remain completely or partially unpaid on the due date, the following shall apply automatically and without any formal notice being required: (i) all uncontested amounts not paid when due shall bear a late payment interest which shall be the higher of (a) 1% per month or (b) the rate specified in the Belgian law of 2 August 2002 on late payment interests in commercial transactions, which interest shall be compounded daily as of the due date until receipt of full payment by Binders Media and (ii) in addition, the Customer shall pay all costs incurred by Binders Media as a result of the (extra-)judicial enforcement of the Customer’s payment obligation under this article. If the Customer fails to pay any outstanding amounts within thirty (30) days from receipt of a written default notice, Binders Media shall be entitled to suspend its obligations and the Customer’s rights hereunder until receipt of payment of such outstanding amounts.”
6. CONFIDENTIALITY – CUSTOMER CONTENT
a) For the purpose of this clause 6.1, “Confidential Information” shall include: the information of such Party (the “Disclosing Party”) disclosed to the other Party (the “Receiving Party”) during the cooperation between both Parties under these Terms, whether in written, oral, electronic or other form and which (i) is explicitly marked as confidential or proprietary, (ii) should reasonably be considered confidential, or (iii) is traditionally recognized to be of a confidential nature, regardless of whether or not it is expressly marked as confidential, and including but not limited to all material, papers, databases, drawings, diagrams, calculations, figures, procedures, processes, business methodologies, contracts (including these Terms), financial, technical and legal information, budgets, sales marketing, public relations, advertising and commerce plans, ideas, strategies, projections, business plans, strategic expansion plans, products and product designs. For the avoidance of doubt, Confidential Information shall include the (pre-existing) Intellectual Property Rights of the Parties. Confidential Information of Binders Media, shall expressly include the SmartEnds.com Platform and underlying software (in object code and source code form).
b) The Receiving Party may only use the Confidential Information for the purposes of complying with its obligations under these Terms, shall hold all Confidential Information in strict confidence and will not disclose, copy, reproduce, or distribute any of it or otherwise make it available to third parties.
c) The Receiving Party may only disclose Confidential Information to its employees, officers, consultants, advisors, representatives on a strict ‘need to know’ basis and provided that they are subject to strict confidentiality obligations (which shall be at least as strict as the confidentiality obligations set out in this clause 6.1)
d) Both Parties shall take sufficient measures to maintain the confidentiality of all Confidential Information (which shall in no case be less than unreasonable). The Parties in particular agree that they shall promptly notify the other Party if it becomes aware of any breach of confidentiality.
e) The confidentiality obligations of this clause 6.1, shall not apply to information that: (i) is published or comes into the public domain other than by a breach of the Terms, (ii) can be proven to have been known by the Receiving Party before disclosure by the Disclosing Party; (iii) is lawfully obtained from a third party other than by a confidentiality breach of such third party; (iv) can be shown to have been created by the receiving Party independently of the disclosure;
disclosure; f) If and to the extent required in accordance with a judicial or other governmental order, the Receiving Party may disclose Confidential Information, provided that the Receiving Party (i) gives the Disclosing Party reasonable notice prior to seek a protective order or equivalent, unless the Receiving Party is legally prohibited from doing so; (ii) reasonably cooperates with the Disclosing Party in its reasonable efforts to obtain a protective order or other appropriate remedy; (iii) discloses only that portion of the Confidential Information that it is legally required to disclose; and (iv) uses reasonable efforts to obtain reliable written assurances from the applicable judicial or governmental entity that it will afford the Confidential Information the highest level of protection available under applicable law or regulation.
The obligations set out in this clause 6 shall enter into force as from the start of negotiations between the Parties and shall survive during five (5) years after the termination or expiration of the Terms.
7.1 Binders Media and the Customer shall provide the services under this Agreement on a non-exclusive basis and may undertake other professional activities. The Parties may therefore each provide services and/or conclude other agreements with third parties during the term of this Agreement. They shall, however, ensure that any activities exercised under this article are not, directly or indirectly, detrimental to the fulfilment of their respective duties hereunder.
8.1 The Customer shall not during the continuance of these Terms and a period of twenty-four (24) months after its termination, whether directly or indirectly, alone or together with any other persons, on their own account or in conjunction with, through or on behalf of any persons, agents, intermediaries, joint ventures or alliances, whether as contractor, director, shareholder, consultant, subcontractor, employee or in any other capacity provide to third parties in the European Economic Area, United Kingdom, Singapore and the United States of America a product and/or service that is similar to or has the same functionalities as the Binders Media’s products or services.
9.1. The Customer shall not without the prior written authorization of Binders Media, for the duration of these Terms and Conditions, and for twenty-four (24) months after termination thereof, hire any of Binders Media’s employees or independent contractors who are involved in the execution of the Terms and Conditions, or have such employees or independent contractors work for him, either directly or indirectly (with companies wherein the Customer has direct or indirect interests), approach them for this purpose or recommend them for employment to third parties.
10.1 Binders Media Intellectual Property rights (IPR)Binders Media and its licensors shall at all times retain all titles, interests and rights, including but not limited to any Intellectual Property rights (IPR), in and to the SmartEnds.com Platform and the Services. All content and materials available at SmartEnds.com defined as the Resources in clause 1, including but not limited to text, graphics, website name, code, images and logos are the Intellectual Property of Binders Media and are protected by applicable copyright and trademark law. All rights in and to the SmartEnds.com Platform not expressly granted to the Customer herein are reserved by Binders Media. No license is granted to the Customer except as to the use of the SmartEnds.com Platform as expressly stated herein. The Customer agrees to be bound by and observe the proprietary nature of the SmartEnds.com Platform. The Customer agrees not to remove, suppress or modify in any way any proprietary marking, including any trade mark or copyright notice, on or in the SmartEnds.com Platform, or visible during its operation, or on media or on any Documentation. Customer shall incorporate or reproduce such proprietary markings in any permitted back-up or other copies.
10.2 Customer Intellectual Property rights (IPR)
The Customer is and shall remain the sole owner of all the rights, titles and interests to Customer Content and of any and all Intellectual Property rights (IPR) pertaining thereto. Nothing contained in these Terms of Service shall be construed to confer upon Binders Media any right, title or interest in or to any such Customer Content or Intellectual Property rights (IPR) thereto or any right, by license or otherwise, to make, or permit others to make any use thereof other than as expressly permitted by the Customer.
10.3 Intellectual Property rights (IPR) developed during the provision of services pursuant to these Terms
The Parties agree that all titles, interests and rights, including but not limited to Intellectual Property rights (IPR) in the services provided by Binders Media pursuant to these Terms shall remain vested in Binders Media.
Both Parties undertake not to decompile, reverse engineer, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or underlying ideas, algorithms, structure or organization) of each other’s Intellectual Property rights (IPR).
11.1. Direct damages.
Without prejudice to and without limiting Article 11.2, Binders Media’s aggregate liability arising out of or in connection with these Terms, the SmartEnds.com Platform and/or the Services, whether in contract, warranty, tort or otherwise, shall not exceed 500% of the License Fees (excluding taxes) payable to Binders Media by the Customer during the preceding six (6) month period. Nothing in these Terms of Service shall limit or exclude Binders Media’s liability resulting from (i) its gross negligence; (ii) its willful misconduct; (iii) any fraud committed by Binders Media.
11.2. Indirect damages.
In no event shall Binders Media be liable for any indirect damage and/or consequential damage, such as but not limited to loss of profits, loss of income, loss of anticipated savings, loss of opportunity, loss of customers, claims of Customers or other third parties, damage as a result of loss and/or corruption of data, loss of goodwill and reputational damage.
11.3 Technical issues.
Further to the limitations of liability set out in articles 11.1. to 11.2. Binders Media will not be liable for any breakdown of the SmartEnds.com Platform, the malfunctioning of the services and/or features provided through the SmartEnds.com Platform, due to technical issues it could not reasonably foresee or prevent.
12.1. Warranty by the Customer. Any inappropriate use, including but not limited to the reproduction, distribution, display or transmission of any content on the SmartEnds.com Platform is strictly prohibited unless specifically authorized by Binders Media. The Customer warrants that it owns all necessary rights in or to the Customer Content and the provided Customer Content shall not (i) infringe any IPR of third parties; (ii) misappropriate any trade secret; (iii) be deceptive, defamatory, obscene, pornographic or unlawful; (iv) contain any viruses, intended to damage the SmartEnds.com Platform; or (v) otherwise violate the rights of a third party. Any use of the SmartEnds.com Platform in violation of these representations and warranties by the Customer constitutes unauthorized and improper use of the SmartEnds.com Platform.
Unless otherwise agreed upon by Binders Media in writing and to the maximum extent permitted by applicable law, Binders Media makes no representations or warranties regarding the condition or functionality of the SmartEnds.com Platform or any part thereof, its suitability for use, or that the SmartEnds.com Platform will be uninterrupted or error-free. Without limiting the foregoing, the SmartEnds.com Platform and any information or content relating thereto is provided “AS IS” without warranty of any kind, either expressed or implied, including, but not limited to, the implied warranties of merchantability, or fitness for a particular purpose. However, Binders Media undertakes to make all commercially reasonable efforts to remedy any bugs reported by the Customer within a reasonable period of time.
13.1 Binders Media will be given prompt written notice of any third party claim on an alleged or actual infringement on the SmartEnds.com Platform or other material made available by Binders Media, and will be granted the right to control and direct the defense and settlement of such a claim. The Customer shall be entitled to participate in such proceedings at its own cost. Binders Media will keep the Customer regularly informed of the status of the proceedings and/or settlement negotiations. The Customer agrees to reasonably cooperate with Binders Media in the defense and settlement of such a claim. In the event the SmartEnds.com Platform or any part thereof, in Binders Media’s reasonable opinion, is likely to or become the subject of a third-party infringement claim (as per this Article
13), Binders Media shall have the right, at its sole option and expense, to: (i) modify the ((allegedly) infringing part of the)) SmartEnds.com Platform so that it becomes non-infringing while preserving equivalent functionality; (ii) obtain for the Customer a license to continue using the SmartEnds.com Platform in accordance with these Terms; or (iii) terminate the further execution of the License and according Services and pay to the Customer an amount equal to a pro rata portion of the License Fees for the remainder of the Term.
In case any alleged or actual Intellectual Property Rights infringement relating to the Licensed Material is arising, the Customer shall immediately cease the use of these Products. In case the Customer neglects this obligation, Binders Media may at its sole discretion terminate the Terms with immediate effect and without any compensation or indemnification.
13.2 The foregoing states the entire liability and obligation of Binders Media and the sole remedy of the Customer with respect to any infringement or alleged infringement of any IPR caused by the SmartEnds.com Platform or any part thereof.
13.3 The Customer hereby agrees to indemnify and hold harmless Binders Media and its current and future Affiliates, officers, directors, employees, agents and representatives from each and every demand, claim, loss, liability, or damage of any kind whatsoever, including reasonable attorney’s fees, whether in tort or in contract, that it or any of them may incur by reason of, or arising out of, any claim which is made by any third party with respect to (i) any breach or violation by the Customer or any provisions of these Terms or (ii) fraud, willful misconduct or gross negligence committed by the Customer or its personnel.
13.4 Binders Media shall have no liability for any claim which is based upon (i) the Customer’s unauthorized use of the SmartEnds.com Platform, (ii) Customer’s or any third party’s modification of the SmartEnds.com Platform, (iii) Customer’s failure to integrate or install any corrections to the SmartEnds.com Platform issued by Binders Media, if Binders Media indicated that such update or correction was required to prevent a potential infringement.
14. PRIVACY AND DATA PROTECTION
14.1. In the performance of the Agreement and these Terms, Binders Media shall process Personal Data on behalf of the Customer. The Parties acknowledge that specific legislation applies to such processing of personal data: the Data Protection Laws as defined in article 18. The Parties agree to comply with their obligations under (i) the Data Protection Laws and (ii) the Data Processing Agreement. If and to the extent required by law, the Customer shall notify the individually authorized end-users of the SmartEnds.com Platform that their data may be processed for the purpose of The Agreement and these Terms.
15. TERM AND TERMINATION
15.1 Any agreement to be entered into between Binders Media and the Customer, on the basis of these Terms, shall enter into force and shall take effect as from the Effective Date and shall remain in effect for a period of one (1) year (the “Initial Term”). Such agreement will automatically renew for successive one (1) year periods (each a “Renewal Term”) beginning at the end of the Initial Term, unless either Party provides notice of termination one (1) month before the end of the Initial Term or the then current Renewal Term, as applicable.
15.2 Either Party may terminate these Terms and any agreement by giving at least a one (1) month notice prior to the end of the Initial Term or the then current Renewal Term, or unless otherwise terminated early in accordance with the provisions of these Terms.
15.4 Either Party may terminate these Terms and any agreement entered into, by written notice to the other Party if the other Party materially breaches this Terms or any agreement and fails to cure such breach within sixty (60) calendar days from receipt of a default notice.
15.5 Either Party may terminate these terms and any agreement entered into, by written notice to the other Party, effective as of the date of delivery of such notice, if the other Party becomes the subject of a voluntary or involuntary bankruptcy.
15.6 Upon termination of these Terms or any agreement entered into, for whatever reason (i) the Customer shall promptly pay Binders Media all Fees and other amounts earned by or due to Binders Media pursuant to these Terms, up to and including the date of termination and (ii) all user rights granted to the Customer pursuant to these Terms, including the right to use the SmartEnds.com Platform as per Article 3, shall automatically terminate and the Customer shall return the Documentation in its possession or under its control, (iii) except as required to comply with any applicable legal or accounting record keeping requirement, each Party shall return the other Party’s Confidential Information that are in the possession or under the control of that respective Party (or alternatively destroy any copies thereof that cannot be returned and confirm the other Party in writing that such copies have been destroyed).
15.7. In the event of termination of an agreement entered into, Binders Media will undertake all reasonable efforts to provide the Customer with the back-up made of the Customer Content as set forth in article 6.2. f) of these Terms.
16.1 Assignment. The Customer may not assign or transfer any rights and/or obligations as set forth in these Terms to any third party. Binders Media shall be free to (i) transfer or assign (part of) its obligations or rights under these Terms to one of its Affiliates and (ii) to subcontract the performance or the support of the performance of these Terms to its Affiliates, individual contractors and to third party service providers without prior notification to the Customer.
16.2 Governing law. This website is controlled by Binders Media, Belgium. By accessing our website or buying our services, you agree that the laws of Belgium, excluding however the general rules of Belgian law on governing law, apply to all matters relating to the use of our website and the purchase of any products or services through this site or company.
16.3 Entire Agreement – Successors – Severability – Waiver. These Terms issued hereunder constitute the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior agreements (with the exception of the Agreement, if any), whether oral or written, between the Parties with respect to such subject matter. These Terms shall bind and inure to the benefit of the Parties hereto and their respective successors and assigns. The provisions of these Terms are severable and if any one or more such provisions shall be determined to be invalid, illegal or unenforceable, in whole or in part, the validity, legality and enforceability of any of the remaining provisions or portions thereof shall not in any way be affected thereby. Any failure to enforce any provision of these Terms shall not constitute a waiver thereof or of any other provision.16.4 Publicity. Use by one Party of the other Party’s name, logo, trade name or trademarks in any public announcements or for promotional, advertising or other purposes, shall require the other Party’s prior written approval (such approval not to be unreasonably withheld).
16.5 Termination. The provisions of these Terms that are expressly or implicitly intended to survive termination shall survive any expiration or termination of these Terms including but not limited to Articles 6, 7, 8, 9, 10, 11, 12, 13, 14, 15.6 and 16.4.
16.6 Force Majeure. A Party shall not be liable for delays or failure to perform its obligations under these Terms, if such delay or failure is caused by Force Majeure. “Force Majeure” is any event beyond the reasonable control of one of the Parties that affects the execution of its obligations under these Terms, including but not limited to, natural disasters, riots, war and military operations, national or local emergencies, actions or omissions of the government, economic disputes of whatever nature, actions of employees, fire, flooding, lightning, explosions, collapses, the reduced or non-functioning of networks, systems and equipment of third parties. The Parties explicitly agree that any non-payment by the Customer of the Fees, shall not qualify as Force Majeure. The Party invoking Force Majeure, must immediately notify the other Party in writing of these circumstances. The execution of the obligation that cannot be carried out due to Force Majeure, will be suspended for the duration of the Force Majeure and must be resumed as soon as the Force Majeure has disappeared. The Party invoking the Force Majeure, must also notify the other Party of the cessation of these circumstances.
16.7 Independence. No employment, partnership, temporary partnership, joint venture or agency form exists between the Parties as a result of these Terms. The relationship between Binders Media and the Customer is that of independent contractors.
16.8 Relationship between Parties. These Terms and any rights and obligations hereunder will be executed in good faith, with respect for each Party’s business strategy and independent decision making process. The Parties agree that the Terms are fair and balanced.
16.9 Interpretation. In these Terms and Conditions (unless the context shall otherwise require or permit): Reference to any statute or statutory provision includes a reference to that statute or statutory provision as from time to time amended, extended or re-enacted; Words importing the singular include the plural, words importing any gender include every gender and words importing persons include bodies corporate and incorporate; and each case vice versa; The headings or captions to the articles are for ease of reference only and shall not affect the interpretation or construction of these Terms and Conditions.
16.10 Notices. Any notice required to be served by the Agreement shall in first instance be given by electronic mail to the email addresses set out in the Quotation (or as otherwise made available by the Parties). All notices given by electronic mail, shall only be valid in case confirmation of receipt was expressly given by electronic mail from Binders Media to the Customer within five (5) business days. In case no confirmation of receipt was given by Binders Media within five (5) business days, all notices can be done in writing and served by personal delivery, registered letter, addressed to either Party at its address given in the Quotation (or as otherwise made available by the Parties). All Notices shall be deemed to have been given either (i) if by hand, at the time of actual delivery thereof to the receiving Party at such Party’s address, as provided above, (ii) if sent by overnight courier, on the next business day following the day such notice is delivered to the courier service, or (iii) if sent by registered or certified mail, on the fifth (5th) business day following the day such mailing is made.16.11 Applicable law and jurisdiction. These Terms are governed by and will be interpreted in accordance with Belgian law, without giving effect to any laws of conflict. Any dispute with respect to the validity and/or interpretation of these terms of Service will be finally settled by the competent courts of Ghent.
17. CONTACT INFORMATION17.1. If you have any questions or comments about these Terms as outlined above, you can contact us at:
Phone: +32 487 59 51 22
BV VAT No. BE 0673.512.273
“Affiliate” means an affiliate (verbonden vennootschap) as defined in article 1:20 of the Belgian Companies and Associations Code;
“Agreement” means any specific agreement entered into between Binders Media and the Customer with regard to the use of the SmartEnds.com Platform and/or the provision of any Services by Binders Media;
“Article” shall mean an article of these Terms;
“Customer” shall mean the legal entity or physical person with whom Binders Media has entered into an agreement for the use of the SmartEnds.com Platform and/or the provision of Services;
“Customer Content” means the set of data, documents and any and all other content or materials belonging to the Customer that is supplied or made available to Binders Media in the course of the execution of the Services;
“Data protection Laws” means the Belgian and European Privacy Laws, including 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 or “GDPR”);
“Documentation” shall mean any documentation provided by Binders Media relating to the use of the SmartEnds.com Platform;
“Effective Date” shall mean the date of an agreement entered into;
“Fees” means the (i) License Fees, the (ii) Support Fee and (iii) the Service Fee, if applicable;
“Implementation Services” means (i) the Strategic Implementation Services and (ii) Technical Implementation Services;
“Initial Term” shall have the meaning as set forth in Article 15.1;
“Intellectual Property Rights (IPR)” means any and all now known or hereafter existing (a) rights associated with works of authorship, including but not limited to copyrights, copyrightable works (including but not limited to mask work rights) and moral rights; (b) trademarks, trade dress, trade names, corporate names or service mark rights; (c) trade secret rights and other confidential information (including but not limited to ideas, information, improvements, specifications, drawings, programmer notes, discoveries and proposals); (d) patents, patent disclosures, and inventions (whether patentable or not) know-how and industrial property rights; (e) logos, layout design rights, design rights, database sui generis right, and other proprietary rights of every kind and nature other than trademarks, service marks, trade dress, and similar rights; whether registered or not, (f) computer software programs (including but not limited to source code and object code), data, databases and documentation thereof and (g) all registrations, applications, renewals, extensions, or reissues of the foregoing, in each case in any jurisdiction throughout the world;
“License” shall have the meaning as set forth in Article 3.1;“License Fees” means any and all amounts due by the Customer to Binders Media in consideration for the License as specified in Annex B of the Proposal, and/ or Order Form, and/or the invoice;
“Personal Data” shall mean any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person;“SmartEnds.com Platform” means the platform through which the Customer can create, share and read visual instructions, manuals and other content; “Quotation” means a form of quotation submitted by Binders Media to the Customer for the use of the SmartEnds.com Platform and/or any Services in which these Terms of Service are or are deemed to be incorporated;
“Renewal Term” shall have the meaning as set forth in Article 15.1;“Service Fee” means any and all amounts due by the Customer to Binders Media in consideration for the Services;
“Services” means the consultancy services to be provided by Binders Media to the Customer as mutually agreed by the Parties;
“Support” means the support services to be provided by Binders Media to the Customer;
“Support Fee” means the fees payable by the Customer to Binders Media for the provision of Support; and
“Term” means the Initial Term or, as the case may be, the Renewal Term.