1. General Provisions
1.1. These terms and conditions (the Conditions ) apply to any order (the Order) between the client (the Client) and E-NITIATIVE related to the use by the Client of an E-commerce web-based platform designed and installed by E-NITIATIVE, including certain basic functionalities and, if applicable, additional options and services chosen by the Client (the Platform).
1.2. The Conditions exclude, except if accepted in writing by E-NITIATIVE, any and all general or particular conditions of the Client.
2.1. The Client selects the version of the Platform (Entry, Pro or Advanced) and the additional options and/or services, if required, by ticking the relevant boxes on the Order (the Registration).
2.2. Following Registration, E-NITIATIVE shall address to the Client a first invoice to be paid (the First Payment) as well as the list of data, files and information required to tailor the Platform to the Clients requisites, such as, without the being limitative, terms and conditions, lay out, logo, about us, products description or specifications, prices, delivery dates or modalities, conformity or warranties of the products (the Information).
2.4. The Client may always switch from one version to another, by notifying E-NITIATIVE. Such change shall only be effective after E-NITIATIVEs written confirmation and shall apply as of the 1st day of the next month following E-NITIATIVEs written confirmation. The charges related to the change of version shall be invoiced to the Client as of such same date.
2.5. Each page of the Platform shall bear the mention Powered by E-NITIATIVE or any other terms determined by E-NITIATIVE.
3. Price and payment
3.1. The price and the payment conditions are those mentioned in the Order. E-NITIATIVE reserves the right to require additional payment securities, such as irrevocable bank instructions or bank guarantee.
3.2. Except if otherwise specified in the Order, the prices are in euros and are exclusive of VAT, duties, taxes, levies, charges, or other supplements, which shall be paid by the Client.
3.3. Invoices are payable in accordance with the payment terms specified in the Order.
3.4. Any claim in connection with an invoice must be notified within seven (7) calendar days following its reception, otherwise it will no be taken into consideration and the invoice will be deemed accepted by the Client.
3.5. The Client may not, for any reason whatsoever, withhold a payment due on the basis of the Order. Except in case of written authorization from E-NITIATIVE, the Client may not claim any right to set-off its debts towards E-NITIATIVE with sums due by E-NITIATIVE to the Client.
3.6. In case of non payment of an invoice on its due date, the Client shall pay to E-NITIATIVE, automatically and without prior formal notice an interest calculated on the basis of interest rate fixed in accordance with article 5 of the Belgian law of August 2, 2002 concerning the fight against the delay in the payment in commercial transactions., with a minimum amount of 50 EUR.
3.7. Furthermore, any invoice unpaid on its due date shall be automatically and without prior formal notice increase by an additional fixed indemnity of 15% of the sums dues, without prejudice to the right of E-NITIATIVE to claim additional damages.
3.8. In case of judicial recovery of an invoice, the Client shall bear the reasonable recovery expenses such as lawyers fees and internal management fees.
3.9. In case of an unforeseen evolution in the cost components, E-NITIATIVE shall be entitled to adjust its prices accordingly provided the Client will be notified one month in advance.
4. Term and termination
4.1. The Order will remain in effect during a minimum period of three (3) months as of the date of Registration. After such initial period, the Order shall be tacitly renewed for an undetermined period of time, unless terminated by any party by giving a thirty (30) calendar days written notice per registered letter.
4.2. Without prejudice of other existing rights and remedies, E-NITIATIVE may terminate the Order and withdraw access to the Platform without notice period nor prior formal notice in the following cases:
4.3. In case of termination of the Order for any reason, E-NITIATIVE may request immediate payment of all the amounts due under the Order, even if not yet outstanding.
5. Liability and warranties
5.1. E-NITIATIVE warrants that during the term of the Order, the Platform shall materially conform to the specifications agreed upon in the Order and that it will install, maintain and support the Platform during the term of the Order. E-NITIATIVE shall provide Client with all reasonable technical information required to connect to the Platform.
5.2. The Client accepts that E-NITIATIVE makes no other express or implied warranties and shall have no liability, except as provided in these Conditions, in connection with the Platform. In particular, E-NITIATIVE disclaims and excludes the implied warranties of merchantability and fitness for a particular purpose. The Client is solely responsible for its choice relating to the functionalities and options of the Platform.
5.3. E-NITIATIVE shall have no liability for access to and intrusions on the Platform by third parties and viruses generated by third parties, save in the event of E-NITIATIVE's negligence. E-NITIATIVE warrants that it will have in place standard virus and firewall protection, using the latest available technologies.
5.4. E-NITIATIVE shall under no circumstances be liable for any indirect damages suffered by the Client. Indirect damages shall include, without limitation, any financial or commercial losses, loss of profit, business opportunity, earnings, goodwill or reputation arising from and/or related with and/or connected to the Platform, costs of delay, any failure of delivery, costs of lost or damaged data or documentation.
5.5. E-NITIATIVE shall under no circumstances be liable towards third parties for the content and adequacy of the Information displayed, for the on line sale of products through the Platform, for the respect of third parties intellectual property rights connected to the Information and the respect of all applicable data protection and consumers protection provisions, the Client being solely liable towards the final customer and third parties. The Client will defend, indemnify and hold harmless E-NITIATIVE and its officers, directors, employees and agents from and against any damages, liabilities, settlement, costs or expense (including reasonable legal expenses and expenses of other professionals), as incurred, resulting from, or arising out of any claim by a third party against E-NITIATIVE in relation thereto.
5.6. In the event that E-NITIATIVE is found liable for damages connected and/or related to the Order, whether in contract or in tort, E-NITIATIVEs liability for such damages shall be limited, per event or series of related event, to an amount equal to the amounts invoiced to and paid by the Client over a period of three (3) months preceding the harmful event with a maximum of EUR ______.
6. Intellectual property rights
6.1. All patents, copyrights and other property rights relating to the Platform shall remain the property of E-NITIATIVE and / or its respective licensor, as the case may be.
6.2. Nothing contained in the Order shall be deemed to convey any title or ownership interest therein to the Client who shall refrain from claiming any rights thereto, from taking any steps to obtain a registration, filing or protection of any alleged rights relating thereto and from transferring any rights whatsoever to any third party in connection thereto.
7.1. Each of the parties shall treat all information, documents, methods, processes and know-how used or supplied by the other party in the performance of the Order as strictly confidential and shall not use these for any other purposes than the performance of the Order. This obligation shall remain in force throughout the duration of the Order and for one year following its termination.
7.2. E-NITIATIVE shall have the right to mention the Client as a reference in its promotional material.
7.3. Each party shall see to it that its employees, agents and representatives respect this confidentiality undertaking.
7.4. The confidentiality obligation shall not apply to information which is publicly available.
8. Fair usage policy
E-NITIATIVEs fair usage policy intends to provide all of its clients with swift and reliable services. Therefore, in the event of excessive use of resources by a Client and failure to cease such behaviour within five (5) working days following a formal notice thereto, E-NITIATIVE reserves the right to take the necessary measures, notably to redirect the Platform, instate an intermediate page or withdraw access to the Platform.
9. Force majeure
9.1. For the purposes of the Order, events of force majeure shall include, without limitation: disruption or break down of the telecommunication network, power failures and other technical disturbances, natural disasters, terrorist attacks, new legal regulations, war, mobilization, blockade, strike whether general or not, lock-out, riot, outbreak of disease, engine breakdown, fire, explosion or any other event hampering regular delivery of raw materials, fuels and stock, or hampering normal production, delivery or transportation as well as any other similar events affecting E-NITIATIVE, or its sub-contractors and suppliers.
9.2. In case of force majeure, either party shall be entitled to suspend the performance of the Order, in whole or in part, upon notice but without compensation.
10. Transfer Sub contracting
Without the prior written consent of E-NITIATIVE, the Client may not transfer the Order nor any rights or obligations resulting therefrom. E-NITIATIVE may transfer all or part of the execution of the Order to a sub contractor or transfer all or part of the Order to a third party without the prior consent of the Client.
11.1. Any notices required to be given under the provisions of the Order shall be in writing and shall be deemed to have been duly served if sent by fax or email correctly addressed to the relevant party's address as specified in the Order or at such other address as either party may hereafter designate from time to time in accordance with this clause.
11.2. The Conditions, together with the Order, contain the entire agreement between the parties with respect to the subject matter hereof. They may be amended only by means of a written agreement signed by E-NITIATIVE and the Client.
11.3. The nullity or inapplicability of one of the provisions of the Conditions shall not affect the validity or applicability of the other provisions. If necessary, the parties undertake to replace the null or inapplicable provision.
11.4. The fact that E-NITIATIVE does not prevail himself of one of the Conditions at a given time may not be interpreted as a waiver to prevail himself of such Condition at a later stage.
11.5. The Order shall be governed by the laws of Belgium. Only the Courts of Brussels shall have jurisdiction regarding any disputes arising in connection with the Order, in French language.