General Terms and Conditions of Sale
PREAMBLE
The order as recorded in the service offer and in the purchase order is subject to the general terms and conditions set out herein. In the event of any contradiction between all or part of Squareflow S.A.’s general terms and conditions and all or part of any other general terms and conditions, the former shall in all circumstances prevail over the latter.
These general terms and conditions apply to all products and services developed and to all services provided by Squareflow S.A., unless otherwise expressly stated in these general terms and conditions.
1. DEFINITIONS AND INTERPRETATION
“Squareflow” and/or the “Service Provider” means Squareflow S.A.;
“Client” means the contracting party requesting the services of Squareflow as described and identified in the Specific Conditions and/or in the purchase order and the service offer;
“Parties” means collectively Squareflow S.A. and the Client;
“Party” means either of the Parties when referred to individually;
“Contract” means the entire contractual relationship between the Parties, the content of which is set out in the Specific Conditions and these general terms and conditions, as well as in the service offer and the purchase order;
“Specific Conditions” means any additional document setting out specific conditions as signed by the Parties;
2. TERM AND TERMINATION OF THE CONTRACT
2.1 The Contract shall take effect on the date agreed in the Specific Conditions and shall
remain in force until:
(i) the full performance of all obligations provided for herein, or
(ii) the early termination of the Agreement within the limits described below.
2.2 Each Party shall have the right to terminate the Agreement early by registered letter in the event of a material breach by the other Party of any of its contractual obligations, provided that no solution has been found within thirty (30) days after the Party alleged to be in material breach has been given formal notice to remedy such breach by registered letter identifying said material breach.
2.3 Each Party shall be entitled to terminate the Agreement without prior notice by registered letter in the event of insolvency, bankruptcy, or the initiation of any collective insolvency proceedings against the other Party.
2.4 The termination of the Agreement shall not affect the rights already acquired by the Parties as of the date of termination.
2.5 As of the effective date of termination of the Agreement, all legal obligations, rights, and duties arising therefrom shall cease, with the exception that:
(i) the Client shall remain liable to pay any outstanding balance due to Squareflow for services performed in execution of the Agreement; and
(ii) Squareflow shall be required to return to the Client all of the Client’s property, whether tangible or intangible.
3. COLLABORATION BETWEEN THE PARTIES
Each Party undertakes to actively collaborate in order to ensure the proper performance of the Agreement. Each Party agrees to communicate, as they arise, any difficulties of which it becomes aware, so as to enable the other Party to take the necessary measures. Squareflow has informed the Client that the proper sequencing of the services relies on such active collaboration. If necessary, the Client may appoint a project manager or establish a steering committee responsible for monitoring the progress and execution of the project.
The Parties are bound by a general obligation of good faith.
4. FINANCIAL CONDITIONS
The financial conditions are set out in the purchase order or quotation.
The prices defined are firm and final, subject to compliance with the scope of services provided for in this Agreement and in the specifications. Any modification of the scope or failure to comply with the schedule attributable to the Client shall result in a price revision based on Squareflow’s service rates as defined in the financial conditions.
5. PAYMENT
5.1 Unless otherwise stipulated, our prices are exclusive of VAT and other taxes.
(a) Unless otherwise stipulated, invoicing is carried out at the end of the month, based on the services actually performed. Timesheets are available upon simple request.
(b) Squareflow s.a. invoices are payable in Belgium in cash upon receipt, unless otherwise specified in the purchase order.
Any invoice not paid by its due date shall, by operation of law and without prior notice, give rise to a fixed compensation amounting to ten percent (10%) of the total invoice amount.
In addition, the invoice amount shall automatically and without prior notice be increased by late payment interest at a rate of fifteen percent (15%) per year in the event of non-payment by the due date.
In the event of non-payment at maturity, Squareflow expressly reserves the right to suspend the performance of the services. The suspension of services does not release the Client from payment of all amounts due and the applicable increases.
5.2 Periodic services:
Unless otherwise stipulated, payment for periodic services (maintenance, hosting, etc.) shall be made upon publication or no later than forty-five (45) days after the product order, and on each anniversary date for the following period. It is expressly agreed that the subscription shall be tacitly renewed from year to year, but may be terminated by either Party one month prior to the anniversary date by registered letter. Termination shall take effect on the anniversary date. Failure to pay by the due date shall result in suspension of the services without prior notice from Squareflow.
6. INTELLECTUAL PROPERTY
6.1 The Client’s pre-existing intellectual property rights shall remain the Client’s property.
6.2 The Client grants Squareflow a non-exclusive and non-transferable right to use the Client’s pre-existing intellectual property rights to the extent and for the duration necessary for the performance of this Agreement.
6.3 Squareflow’s pre-existing intellectual property rights shall remain the property of Squareflow.
6.4 The Client undertakes:
(i) to protect Squareflow’s pre-existing intellectual property rights against any copying, adaptation, variation or modification of any kind that would infringe such rights, and to protect them against any unauthorized use by third parties, including Internet users; and
(ii) to keep confidential all codes, know-how, computer programs, including but not limited to source codes in high-level and low-level languages, program files, data files, programs and system logic, interfaces, algorithms, system designs and concepts, as well as the methods and processes associated with such programs.
7. ADVERTISING
After Final Delivery, unless otherwise stated, the Client expressly authorizes Squareflow to cite the Client, as well as a summary of the work performed, on Squareflow’s website and in all its marketing and advertising tools, and to indicate that such work was carried out by Squareflow. The Client also authorizes Squareflow to include and maintain a reference to Squareflow on the homepage of the delivered product as well as on the download platform.
8. LIABILITY
8.1 Squareflow shall perform its services in accordance with the rules of the art generally accepted in the profession; it is expressly agreed that Squareflow is only bound by a general obligation of means. The Client is solely responsible for the informational content that it publishes or requests to be published online. The Client undertakes to comply with all rules or regulations that may prevent, limit, or regulate the dissemination of information.
8.2 Squareflow shall not be held liable for any indirect losses, damages, costs, or expenses of any kind whatsoever, regardless of their cause, whether arising under contract, tort, or otherwise, including, without limitation, loss of production, loss or corruption of data, loss of profits or contracts, loss of operating time, and loss of customers or anticipated savings arising from or in connection with the subject matter of this Contract.
8.3 Squareflow shall not be liable for any damage incurred by the Client as a result of modifications to the subject matter of this Contract made by the Client or by a user of the delivered product.
8.4 In any event, Squareflow’s liability is limited to gross negligence and willful misconduct and to the amount of the remuneration received in connection with the performance of the Contract.
8.5 Squareflow, which makes use of functionalities from external companies such as Apple, Google, YouTube, Facebook, etc., is subject to the specific general terms and conditions of each of these companies. As Squareflow is dependent on the general terms and conditions of sale of its external suppliers, Squareflow disclaims all liability for any unforeseeable changes in commercial policy, services, techniques, or, more generally, for any failure whatsoever of its suppliers.
9. UNLAWFUL OR HARMFUL CONTENT
9.1 The Client is solely responsible for providing the informational content of the website or application, for example all information the Client wishes to have reproduced on the application or website, whether hidden or visible to users.
The Client expressly warrants that such informational content does not violate any applicable law. The Client undertakes to comply with all applicable laws, regulations, contracts, and generally accepted codes of conduct that prevent, limit, or regulate the dissemination of certain information, such as rules relating to advertising, privacy protection, intellectual property protection, prohibition of child pornography, etc. The Client shall defend Squareflow against any claims by third parties alleging that the informational content of the application or website violates any applicable law or regulation.
9.2 On its own initiative or at the initiative of a third party, Squareflow may decide to temporarily or permanently suspend the Final Delivery or access to all or part of the website or application if it has reasonable grounds to believe that a legal, regulatory, or contractual provision has been or is being violated. The suspension of any service by Squareflow under this section shall not suspend the Client’s payment obligations. The Client expressly waives its right to claim damages in the event of an error of judgment by Squareflow, except in cases of fraud or gross negligence on the part of Squareflow.
10. PERSONAL DATA PROTECTION / GENERAL DATA PROTECTION REGULATION (GDPR)
REGULATION (GDPR)
Squareflow undertakes to use the Client’s personal data solely for administrative purposes. The Client has access to their personal data upon simple written request. Information relating to credit card numbers and banking data shall be used solely for the purpose of payment of the agreed price.
11. NON-SOLICITATION
The Parties agree that during the performance of this Contract and for a period of two (2) consecutive years following its termination, they shall not solicit, employ, or engage in any manner whatsoever, directly or indirectly, an employee or consultant of the other Party, or any person who held such a position during the performance of the Contract.
In the event of a breach of this clause, the breaching Party shall pay the other Party, as damages, an amount equal to twice the annual salary and/or remuneration of such person, without prejudice to any other actions or claims for compensation that the injured Party may bring.
12. FORCE MAJEURE
Neither Party shall be liable to the other for any destruction, damage, delay, or inconvenience of any kind caused by war, rebellion, civil war, riots, strikes and industrial disputes, fires and explosions, earthquakes, floods, droughts, adverse weather conditions, requisitions, or any actions or orders imposed by any governmental authority or public body.
13. AMENDMENTS
In order to ensure a service that is always adapted and efficient for the Client, Squareflow reserves the right to unilaterally modify these general terms and conditions at any time, without having to provide any specific justification.
14. WAIVER
The failure by a Party to require the performance of any provision of the Contract or to exercise any of its rights shall not be deemed a waiver of such provision or a relinquishment of such rights, which shall remain fully effective. Any single or partial exercise of a right by a Party shall not prevent its subsequent or repeated exercise or the exercise of any other right.
15. SEVERABILITY
If any provision of the General Conditions or Special Conditions, or any schedule or attached document, is declared invalid, illegal, or unenforceable to any extent, such provision shall, to that extent, be deemed severable, and the remaining provisions shall remain fully valid to the fullest extent permitted by law.
The Parties shall then consult in good faith to replace the invalid provision with other provisions that have substantially the same economic effect for the Parties.
16. ASSIGNMENT
Without prejudice to subcontractors designated in the Special Conditions, neither Party may assign, transfer, charge, encumber, or sell all or part of this agreement or its rights or obligations hereunder without the prior written consent of the other Party.
17. INDEPENDENCE OF THE PARTIES
Each Party acts independently in the performance of this Contract and not as an employee or agent of the other Party. No Party shall assume any obligation of any kind, express or implied, on behalf of the other Party, nor bind or commit the other Party in any manner whatsoever.
18. ENTIRE AGREEMENT
The Contract, as defined in the Special Conditions and these General Conditions, including all documents agreed by the Parties to be attached hereto, constitutes the sole and entire agreement between the Parties and supersedes and replaces all prior or contemporaneous agreements, whether written or oral, relating to the subject matter of the Contract. There are no other covenants, agreements, or undertakings, express or implied, other than those expressly set forth in this document.
19. NOTICES
All notices by a Party under this Contract shall be deemed duly given if made in writing and delivered either by hand with acknowledgment of receipt, by registered mail, or by fax, to the address specified on the first page of this Contract or to any other address designated by the other Party.
20. GOVERNING LAW AND JURISDICTION
The formation, validity, and performance of this Contract shall be governed in all respects by Belgian law. Any dispute arising out of or in connection with this Contract shall fall within the exclusive jurisdiction of the courts of Brussels.
21. WARRANTIES
21.1 The service provider shall use its best efforts to deliver an application free from viruses, worms, Trojan horses, mail-bombing robots, and any other form of contamination at the time of Final Delivery.
21.2 The service provider warrants and undertakes that, to the best of its reasonable knowledge, both its upstream intellectual property and downstream intellectual property do not infringe any third-party copyright or any other intellectual property rights. In the event that all or part of the service provider’s upstream intellectual property or downstream intellectual property is, or in the service provider’s opinion may become, the subject of any claim, action, or proceeding for infringement of such rights, the service provider may, at the Client’s expense, take one of the following actions:
(a) obtain for the Client the necessary intellectual property rights to properly use the upstream intellectual property, downstream intellectual property, or any relevant part thereof; or
(b) replace the service provider’s upstream intellectual property, downstream intellectual property, or any relevant part thereof with other appropriate rights or rights components; or
(c) appropriately modify the upstream intellectual property, downstream intellectual property, or any relevant part thereof so that it no longer infringes any rights.
21.3 The Client warrants and undertakes that any upstream intellectual property of the Client provided to the service provider for inclusion in the application or used for the development of the application is owned by the Client or that the Client has obtained authorization from the rightful owner to use each such element.
21.4 The Client shall indemnify and hold the service provider harmless against any third-party claims alleging that the Client’s upstream intellectual property violates any applicable law, regulation, contract, or code of conduct, or infringes any intellectual property right or other legitimate interest of such third party.
22. MAINTENANCE
Within the framework of a maintenance contract with Squareflow, the Client has been informed and acknowledges that, given the current state of information technology and its rapid evolution, it is impossible to guarantee uninterrupted and fault-free operation of the delivered product. Nevertheless, Squareflow undertakes to correct any potential malfunctions as soon as reasonably possible. Such maintenance shall cover only failures of components supplied by Squareflow, provided that the Client has complied with the prescribed conditions of use of the product. Any modification made by the Client or by any person other than Squareflow falls outside the scope of the maintenance contract. Any repair, restoration, or modification of the product resulting from an intervention by the Client shall be billed at the applicable hourly rate.