Terms and Conditions

Digital Climax TERMS AND CONDITIONS (VERSION 08/04/2023)

1. General Section
2. Definitions

• Terms and Conditions: these Terms and Conditions.

• GDPR: General Data Protection Regulation (EU) 2016/679 of April 27, 2016.

• Order Form: Digital Climax’s order form , which includes the Special Terms and Conditions, whether or not it constitutes an accepted quote.

• Special Terms and Conditions: the special terms and conditions of the Agreement between Digital Climax and the Customer, specifying, among other things, the specific Services to be provided by Digital Climax, the Price, and the delivery period, as set forth in the Purchase Order.

• CMS: content management system, i.e., software that allows the content (including text and images) of, for example, a website to be updated.

• Content Marketing: creating content for online advertising, blog posts, e-books, social media posts, and automated emails, with or without the use of a CMS.

• Creation: any creation, work, effort, concept, idea, improvement, modification, technology, solution, system, product, invention, method, procedure, research, development, process, study, diagram, analysis, document, investigation, implementation, know-how, database, (value) strategy, software (tool) or computer program, embedded software, firmware, application, software components, software code (object code and source code), preparatory material, add-on(s), extension, functionality, feature, Service, update, data, modification, interface (API), drawing, sketch, plan, design, layout, symbol, logo, branding, graphic elements, look & feel, marketing materials, websites, text(s), videos, audiovisual creations (with or without sound), photos, any other content or information, or any intellectual work or result of any intellectual or creative activity, of any nature whatsoever, in any form of expression or on any medium whatsoever.

• Services: the services offered by Digital Climax and/or performed on behalf of the Client, as further described in the Special Terms and Conditions, including, but not limited to, IT services such as web design, online stores, and web applications, online advertising, Content Marketing, SEO Optimization, hosting, and maintenance services.

• Hosting: the act of placing a website, online store, and/or web application on a server—whether cloud-based or not—connected to the internet, thereby making the website, online store, or web application accessible via the internet.

• Intellectual Property Rights: all current or future (intellectual property) rights and claims, in the broadest sense, including but not limited to copyrights and related rights, software protection, database protection, design rights, trademark rights, patent rights, trade names, and domain names, including (the right to) apply for the grant of such rights.

• Client: the company that uses the Services.

• Digital Climax: Digital Climax BV , doing business under the trade name “Digital Climax,” with its registered office at 2275 Lille, 13 Delphine Adriaensstraat, with company number 0800.762.120, telephone number +32.476.24.71.35, and email address info@digital-climax.be.

• Online Advertising: services related to the development and implementation of online ads via Google Ads and social media, including analysis, strategy development, content marketing, target audience segmentation, Google Analytics setup, Facebook Pixel setup, weekly monitoring, weekly optimization, monthly reporting, and support.

• Agreement: the agreement(s) entered into between Digital Climax and the Customer, including the Special Terms and Conditions, the version of the General Terms and Conditions attached to the quotation and/or Purchase Order, and any annexes to the aforementioned General and Special Terms and Conditions agreed upon by both parties.

• Force Majeure: Any event or circumstance that prevents or hinders a Party from performing one or more of its contractual obligations under the Agreement, if and to the extent that the Party affected by the hindrance proves (a) that such hindrance is beyond its reasonable control; (b) that it could not reasonably have been foreseen at the time the Agreement was entered into; and (c) that the consequences of the impediment could not reasonably have been avoided or overcome by the affected Party. If a Party to the Agreement fails to perform one or more of its contractual obligations because a third party it has engaged to perform the Agreement in whole or in part fails to perform, the relevant Party to the Agreement may invoke Force Majeure only to the extent that the above requirements in this definition of Force Majeure are met for both the Party to the Agreement and the third party. Unless proven otherwise, the following events or circumstances affecting a Party are deemed to satisfy requirements (a) and (b) above in this definition of Force Majeure, and the affected Party need only prove that requirement (c) is satisfied: (1) war (whether declared or not), hostilities, invasion, occupation, military mobilization; (2) civil war, insurrection, rebellion, revolution, military or usurping power, uprising, act of terrorism, sabotage, or piracy; (3) currency and trade restrictions, embargo; (4) lawful or unlawful government action, expropriation, seizure of works and/or assets by the government, nationalization; (5) epidemic; (6) natural disaster or extreme natural phenomena (e.g., earthquake); (7) explosion, fire, prolonged failure of energy, transportation, telecommunications, and information systems; (8) strike or lockout.

• Party: Digital Climax and/or (as the case may be) the Customer.

• Price: the price for the Services, as specified in the Special Terms and Conditions.

• SEO Services: Services related to search engine optimization, specifically those aimed at improving the Client’s Website’s ranking in search engine results (e.g., Google), in the form of, among other things, an audit (e.g., through keyword research, competitor analysis), analysis, (technical) support (e.g., through website optimization, drafting of SEO-optimized content (e.g., as part of content marketing), linkbuilding), and follow-up.

• Update: any bug fixes and/or any limited release, change, modification, revision, or improvement to ensure that a specific application (e.g., website, online store) remains functional and state-of-the-art.

• Upgrade: any major release, new version, change, or improvement (including new features added in addition to any bug fixes and improvements to existing operation and functionality).

• Web application: a software program that runs on a web server and can be accessed via a web browser, consisting of one or more scripts that use the same source data—which may be stored in a database—on a web server.

• Web Design: Website Design and Development.

• Website: a cohesive collection of digital web pages, including any associated audiovisual digital media files, scripts, and databases.

• Online store: a web portal, part of a website, for online purchases and payments for goods and services.

• Business days: every day, except Saturdays, Sundays, and Belgian legal holidays, between 9 a.m. and 5 p.m.

2. Agreement, Applicability, and Interpretation

• Unless proven otherwise, the Customer confirms that it has read and accepts these General Terms and Conditions and excludes the applicability of its own general terms and conditions. The text of these General Terms and Conditions is also available for review at any time under the “General Terms and Conditions” section on the Digital Climax website (https://www.digital-climax.be/algemene-voorwaarden/).

• These General Terms and Conditions apply to all Services provided by Digital Climax to the Customer, without prejudice to any specific provisions to the contrary in the Special Terms and Conditions. They form part of every proposal or offer to enter into a contract made by Digital Climax; every such proposal or offer, once accepted by both Parties, constitutes the Special Terms and Conditions. These General Terms and Conditions, together with the Special Terms and Conditions, constitute the Agreement with the Customer.

• Any proposal or offer to enter into a contract with Digital Climax is valid for 60 days, unless otherwise specified in writing by Digital Climax.

• Digital Climax reserves the right to amend these Terms and Conditions at any time; the Customer will be notified of any amendment no later than 30 days before it takes effect; if the Customer does not object to the amended Terms and Conditions within 15 days of the aforementioned notification via email to info@digital-climax.be, the amended Terms and Conditions will automatically take effect and apply to the current Agreements. If the Customer does object within the aforementioned period by email to info@digital-climax.be, the old Terms and Conditions will remain in effect in the relationship with that Customer.

• The Agreement and/or these General Terms and Conditions do not in any way cover the usage policies or terms and conditions of other service providers, partners, suppliers, or companies that Digital Climax and/or the Customer engages (whether or not as subcontractors).

• A reference to an Article or an Appendix is a reference to a recital, article, or appendix to these General Terms and Conditions, unless expressly provided otherwise.

• All Appendices form an integral part of these General Terms and Conditions. In the event of any conflict between the provisions of these General Terms and Conditions and the provisions of the Appendices, the provisions of the Appendices shall prevail.

• In the event of any conflict between the provisions of this general section of these General Terms and Conditions and the specific sections of these General Terms and Conditions, the provisions of the specific sections of these General Terms and Conditions shall prevail.

• Headings are included solely for clarity and do not affect the interpretation of these Terms and Conditions.

• Words and expressions in the singular are deemed to include the plural, and vice versa, to the extent that the context requires it. Nouns are deemed to include verbs, and vice versa, to the extent that the context requires it.

• Terms such as “including,” “e.g.,” “such as,” “etc.,” and “among others” imply a non-exhaustive list. Terms such as “in particular,” “namely,” “in particular,” “that is,” and“e.” imply a clarification.

3. Services

• Digital Climax will make every reasonable effort to provide the Services to the Customer in accordance with the terms of the Agreement. Unless otherwise agreed in writing, Digital Climax’s obligations are best-efforts obligations.

• Unless otherwise agreed in writing, the delivery or completion dates provided by Digital Climax are purely indicative.

• Digital Climax is entitled to perform the Agreement in different phases, if necessary, and to invoice the Client separately for each phase completed.

• Digital Climax has the right to engage subcontractors, external suppliers, partners, or service providers to perform the Services, without being required to notify the Customer in advance.

• The Customer is at all times solely responsible for all licenses and permits required for the Services, which must be submitted to Digital Climax prior to the commencement of the Services. The Customer is obligated to use the Services exclusively for legitimate purposes. Any damages or fines resulting from the foregoing shall at all times be borne in full by the Customer.

• The Customer is required, throughout the entire term of this Agreement, to have sufficiently adequate and up-to-date software and hardware (including operating systems), on the one hand, and sufficiently adequate and up-to-date antivirus, antispyware, and firewall protection on its computer systems, networks, and Internet connections. In the absence of such measures, the Customer acknowledges that Digital Climax’s Services may be disrupted, without Digital Climax being liable to pay any compensation to the Customer in this regard.

• The Customer is obligated to provide Digital Climax with all necessary information and to cooperate as required to enable Digital Climax to perform the Services properly, to facilitate their performance, and to avoid or mitigate risks. If the Services are to be performed at the Customer’s location or facility, the Customer shall provide, at no cost, all necessary infrastructure (e.g., internet and telephone services) and ensure the availability of resources (e.g., staff assistance) required to perform the Services. Any delay caused by the Customer’s or a third party’s failure to provide, or the defective or delayed provision of, necessary information (or the provision of incorrect or incomplete information) or (hardware and/or software) infrastructure falls outside the scope of Digital Climax’s responsibility. In such cases, Digital Climax shall in no way be liable for any (direct or indirect) damages that the Customer or third parties may suffer as a result. In such cases, Digital Climax is entitled to suspend the performance of its services, to charge the Customer for the costs resulting from the delay, and/or to charge the Customer an additional fee in accordance with Digital Climax’s rates in effect at that time.

• The Customer must submit all requests for changes to the Agreement, the Services, and/or additional work in writing to Digital Climax. All such changes requested by the Customer, as well as the determination of the compensation and/or price thereof, always require the prior consent of both the Customer and Digital Climax and may be proven by any legal means, e.g., through their uncontested performance by Digital Climax.

• Digital Climax agrees to correct minor defects (e.g., spelling errors, blurry photos, minor technical errors) free of charge within one month of the delivery of the Services.

4. Pricing, Billing, and Payment

• All prices and other rates charged by Digital Climax are exclusive of VAT and any other government-imposed taxes, which are entirely the responsibility of the Customer.

• The Customer agrees to receive electronic invoices from Digital Climax.

• If, based on objective circumstances, there is a well-founded fear that the Customer will not fulfill its contractual obligations toward Digital Climax, Digital Climax shall at all times have the right to require the Customer to make one or more advance payments, full prepayment, the signing of a prepayment or installment plan, the provision of additional information, or the provision of supplementary security before proceeding with the delivery of the Products or Services. Such objective circumstances include, among other things, the Customer’s financial situation, e.g., a deterioration in that situation between the conclusion of the Agreement and delivery, as evidenced—whether or not based on the assessment of Digital Climax’s credit insurer—by, among other things, the issuance of a bad check, the protest of a bill of exchange, attachment, dissolution, liquidation, collective debt settlement, bankruptcy, fulfillment of the conditions for the “alarm bell” procedure, negative equity, losses, payment arrears, store closure, debts owed to government agencies, judgments by default, a negative credit rating (e.g., loss of credit limit by Digital Climax’s credit insurer), regardless of whether these relate to the contractual relationship with Digital Climax or with third parties. Making delivery contingent upon the payment of a deposit, full prepayment, the signing of a prepayment or installment plan, the provision of additional information, or the provision of other supplementary security does not give rise to any right (to claim). If the Customer refuses to provide the guarantees listed in the preceding sentence within 15 days of a request to that effect by Digital Climax, Digital Climax shall have the right, without prior notice of default and without prior judicial intervention, to terminate the Agreement out of court at the Customer’s expense and to claim additional damages from the Customer as provided for in Article I.5.5.

• Any changes to the Services, including, for example, modified or additional features in the Website, Web Application, and/or Web Store to be developed, or other additional work or tasks requested by the Client (including Updates and Upgrades) and the resulting costs, or any additional costs arising from the Client’s failure to comply with agreements made with Digital Climax, shall be borne in full by the Client and will be invoiced separately in accordance with the rates in effect at that time as specified in the Agreement, without prejudice to the provisions of any Maintenance Agreement entered into with the Client.

• Unless otherwise agreed in writing and without prejudice to any provisions to the contrary in the specific sections of these General Terms and Conditions, all invoices issued by Digital Climax must be paid by the Customer within 8 calendar days of the invoice date.

• In the event of failure to make full and timely payment of one or more invoices, Digital Climax shall, by operation of law and without prior notice of default, (i) entitled to payment of default interest at a contractual interest rate equal to the interest rate provided for in Article 5 of the Act of August 2, 2002, on Combating Late Payment in Commercial Transactions, from the due date of each invoice until the date of full payment; and (ii) the right to payment of a lump-sum compensation of 10% of the unpaid invoice amount, with a minimum of EUR 100, without prejudice to Digital Climax’s right to claim higher compensation provided it can prove that it has actually suffered greater damages.

• In the event of non-payment of one or more invoices by their due date, all outstanding invoices that are not yet due shall become due and payable by the Customer by operation of law and without prior notice of default.

• If the Customer consists of multiple persons (natural and/or legal persons), they are jointly and severally liable for the payments required of them under these General Terms and Conditions and/or the agreement.

• Digital Climax has the right to first apply payments toward any fees owed, contractual lump-sum damages, and default interest, before applying them toward the outstanding principal amount(s).

• Unless Digital Climax has given prior written consent, the Customer is not permitted to set off any amounts. This provision does not affect the Customer’s rights under Article I.12.

• Any invoice disputed by the Customer must be notified to Digital Climax by certified mail within 10 calendar days, under penalty of forfeiture, stating the reason(s) for the dispute.

• In the event that Digital Climax’s suppliers increase their prices relative to Digital Climax (e.g., software tool providers, hosting providers, etc.), Digital Climax has the right to pass on this price increase in full to the Customer. Prices may also be changed at any time by mutual agreement.

• Without prejudice to Article I.4.12, Digital Climax has the right to adjust its prices by up to 80% at any time in the event of (i) an increase in one or more actual cost factors or (ii) an increase in government levies. At Digital Climax’s request, the price may be adjusted according to the following formula:

P = P° [a × (S/S°) + b]

P = the revised price,

P° = the price as initially set,

S = the labor cost index determined during implementation (index [PC Agoria Digital 227]),

S° = the labor cost index in effect at the time this agreement is signed (Agoria Digital PC Index 227),

In the revision formula above, the coefficients a, b, and c have the following fixed values, respectively: a = 0.8; b = 0.20.

If the application of this price adjustment clause would result in a decrease in prices, the price adjustment shall not apply, and the prices in effect at that time shall remain in effect.

5. Term and Termination of the Agreement – Breach of Contract

• The Agreement may be a fixed-term agreement limited to one or more specific Services. The Agreement may also be entered into (i) either for an indefinite term, in which case either party may terminate the Agreement by registered letter, provided that a notice period of 1 is observed; (ii) or for a fixed term, in which case the Agreement shall automatically and by operation of law be extended for an indefinite term upon the expiration of the aforementioned term, unless one of the Parties has terminated the Agreement by registered letter no later than 1 month before the scheduled end date. After the fixed term has expired, both Parties have the right to terminate the Agreement at any time by certified letter, subject to a notice period of 1 month. The notice period begins on the first day of the month following the month in which notice of termination was given.

• Notice of termination must always be given by certified mail, specifying the start and end dates of the notice period. The aforementioned certified letter takes effect on the third business day following the date of mailing.

• In the event that the Customer fails to fulfill one or more of its contractual obligations, including, but not limited to, late payment of invoices, Digital Climax will issue a notice of default to the Customer in writing or by email, requesting that the Customer fulfill its contractual obligations within a grace period of 15 calendar days from the date of the certified letter, stating that, in the event of failure to fulfill the contractual obligations within the aforementioned period, Digital Climax will exercise its right to suspend any further performance under the Agreement. In the event that the Customer still fails to fulfill its contractual obligations after the aforementioned period, Digital Climax has the right to suspend any further performance under the Agreement immediately and without further notice of default (including the suspension of any Service, including any hosting services). In such a case, Digital Climax shall in no way be liable for any damages that the Customer or its customers may suffer as a result (in particular, but not limited to, loss of (business) data, the Customer’s inability to access its electronic documents and/or data, loss of business profits, etc.).

• Furthermore, if the Customer fails to fulfill one or more of its contractual obligations, Digital Climax has the right to terminate the Agreement with the Customer at the Customer’s expense without prior judicial intervention. Digital Climax may terminate the Agreement with the Customer out of court only in accordance with this Article I.5.4 Digital Climax may terminate the Agreement with the Customer out of court in accordance with this Article I.5 only if Digital Climax has given the Customer notice of default by certified mail and the Customer has failed to fulfill its contractual obligations within 15 calendar days of the postmark date of the aforementioned notice of default.

• In the event of termination of the Agreement by Digital Climax at the Customer’s expense in accordance with Article I.5.4, Digital Climax is entitled to (additional) compensation at the Customer’s expense. If the matter concerns a fixed-term assignment (and not a continuing contract), the damages shall amount to 50% of the agreed-upon total price of the agreed-upon but unperformed Services, without prejudice to Digital Climax’s right to compensation for all work already performed and costs already incurred, and without prejudice to Digital Climax’s right to additional compensation if grounds for such exist. If the Agreement is a contract of indefinite duration, the damages shall be equal to 6 months’ compensation based on the average of the fees invoiced by Digital Climax to the Client during the year preceding the termination or, if the Agreement has lasted less than one year, the average of the fees invoiced by Digital Climax to the Customer during the period preceding the termination, without prejudice to Digital Climax’s right to reimbursement for all services already rendered and costs incurred, and without prejudice to Digital Climax’s right to additional damages if grounds for such exist. If the Agreement is a fixed-term contract, the damages shall equal 50% of the agreed-upon fees up to the next anniversary of the Agreement, without prejudice to Digital Climax’s right to compensation for all services already rendered and costs already incurred, and without prejudice to Digital Climax’s right to additional damages if grounds for such exist.

• Digital Climax may consider the Agreement terminated by operation of law and with immediate effect, provided that written notice of this is given to the Customer, if the Customer has been declared bankrupt or has filed for bankruptcy, has filed for protection from its creditors (with regard to the latter, subject to the exclusion of this possibility under applicable law), or a decision is made to dissolve and liquidate the Customer (whether judicially or extrajudicially). In such cases, all outstanding but not yet due invoices shall become due and payable by operation of law and without prior notice of default.

• The Agreement shall terminate if a situation of Force Majeure persists for more than 90 days. In such a case, Digital Climax shall be entitled to compensation for all services already rendered and expenses already incurred.

• If the Agreement with the Client comprises multiple specific agreements (e.g., web design on the one hand and SEO services on the other), termination of a specific agreement shall not result in the termination of the entire Agreement, unless the notice of termination expressly states that it is intended to terminate the entire Agreement.

6. Complaints – Liability – Force Majeure

• Any complaint regarding (the performance of) the Services must be submitted to Digital Climax in a duly substantiated manner via certified mail no later than 10 calendar days after delivery, performance, or invoicing, or after the discovery of any damage; failure to do so will result in the complaint not being accepted.

• For Services provided by third parties (e.g., Meta, Google), the liability provisions of these third parties apply directly to the Customer, without prejudice to any additional provisions in favor of Digital Climax contained in these Terms and Conditions.

• Claims as referred to in this Article I.6 do not suspend the Customer’s obligations under the Agreement (including, but not limited to, its payment obligations).

• However, a complaint does not entitle the Customer to terminate the Agreement, nor does it entitle the Customer to suspend or refuse acceptance of or payment for a Service, nor does it entitle the Customer to claim damages.

• The right to claim damages from Digital Climax shall irrevocably expire six (6) months after the alleged error occurred. The Customer must send a written notice of default to Digital Climax within the aforementioned period, including a detailed description of the alleged error.

• Except in cases of fraud, willful misconduct, or gross negligence on its part or on the part of its employees, Digital Climax shall not be liable in any way for indirect or consequential damages, including but not limited to economic losses (e.g., loss of profits, loss of time, loss of business opportunities, loss of goodwill, increase in general expenses, disruption of business operations, loss of customers, third-party claims, etc., or any other form of economic loss), non-pecuniary damages (e.g., damage to reputation), and damage to third-party products (e.g., third-party computer programs).

• In any event, Digital Climax’s liability to the Client, for both direct and indirect damages, even in the case of property damage, is limited to the amount actually paid out by Digital Climax’s insurer, or, in the absence thereof, the amount equal to the fees for one calendar year received by Digital Climax from the Customer under the Agreement for the performance of the Services, or, if the Agreement lasted for less than one calendar year, an amount equal to the payments received by Digital Climax from the Customer under the Agreement for the performance of the Services.

• Digital Climax shall not be liable for any failure to perform, any delay in performance, or any improper performance of any of its obligations resulting from Force Majeure. In the event of Force Majeure, the Customer shall have no right to compensation from Digital Climax on any grounds whatsoever. If a case of Force Majeure results in an interruption in the performance of the Services, the performance period shall be automatically suspended for the duration of the interruption, plus the time required to resume the performance of the Services, without Digital Climax owing any compensation to the Customer, without prejudice to Article I.5.7. Any additional costs resulting therefrom shall always be borne in full by the Customer.

• Under no circumstances may Digital Climax be held jointly and severally, indivisibly, or in solidum with third parties liable for damages.

• Digital Climax does not guarantee any specific results in connection with the Services. Digital Climax does not guarantee that the subject matter of its Services will meet the Customer’s performance requirements or that the subject matter of the Services will function in accordance with the Customer’s expectations. Digital Climax does not guarantee fitness for a particular purpose.

• The Customer is required to take all necessary measures to minimize its losses.

• The Customer is obligated to indemnify and hold Digital Climax harmless from all claims, claims, and demands brought against Digital Climax as a result of (i) the Customer’s failure to perform or breach of any obligation incumbent upon the Customer under these General Terms and Conditions, and/or (ii) any claim of any nature whatsoever brought by a third party who may suffer damage of any kind as a result of the Customer’s activities relating to the Customer’s use of Digital Climax’s Services.

7. Intellectual Property Rights

• All Intellectual Property Rights in any Creation created and/or developed by Digital Climax under the Agreement are the exclusive property of Digital Climax or a company belonging to the Digital Climax group or an affiliated company, without prejudice to Article I.7.2. Without prejudice to Articles I.7.2 and I.7.3, no provision of the Agreement shall be construed as constituting a full or partial transfer of Digital Climax’s Intellectual Property Rights to the Customer.

• Without prejudice to Articles I.7.3 and I.7.4, Digital Climax grants the Customer a limited, non-transferable right to use Digital Climax’s Creations for the purposes of performing the Agreement, specifically for use by the Customer for marketing purposes in connection with its Business.

• Digital Climax retains all copyrights to its creative works relating to the visual design of Web Design, web stores, and web applications (including the original texts written by Digital Climax for the websites, web stores, and web applications it has created) to the Client upon full payment by the Client of the total price for the relevant Services as specified in Article II.1. Digital Climax transfers all copyrights to its visual design Creations and to the original texts written by it in the context of Content Marketing to the Client upon full payment by the Client of the setup fee and a fee equal to three months’ fee as specified in Article IV.1.1. This Article I.7.3 does not affect Digital Climax’s rights under Article I.7.4. This Article I.7.3 does not pertain to any software rights held by Digital Climax.

• With respect to the copyrights transferred in accordance with Article I.7.3, the Client grants Digital Climax a perpetual, royalty-free, unlimited, worldwide, and transferable license to use the relevant visual design and text in other Digital Climax projects.

• The Customer is not permitted to alter, remove, or obscure any indication of Digital Climax’s Intellectual Property Rights.

• The Customer is not permitted to use or register any trademark, design, or domain name belonging to Digital Climax, or any corresponding symbol, in any country worldwide.

• The Customer warrants that it is authorized to use or store the software, services, and/or data that it uses or stores in any manner in connection with the Services (for example, as a licensee or owner of the relevant intellectual property rights). In any event, the Customer shall fully and unconditionally indemnify Digital Climax—including principal, interest, and (court and attorney’s) fees—against all claims by third parties in this regard.

8. Confidentiality, Security, and Protection of Personal Data

• All information exchanged between the parties under the Agreement that is designated as confidential or that should reasonably be considered confidential must be treated as strictly confidential and may not be used for any purpose other than the performance of the obligations under the Agreement, nor may it be disclosed, distributed, or made available to third parties in any manner without the written consent of the other party, with the exception of employees, subcontractors, or personnel who need direct knowledge of such information for the performance of the Agreement and who have signed a similar confidentiality agreement. The aforementioned confidentiality obligation applies both during the term of the Agreement and for a period of 5 years following the termination of the Agreement. The Customer warrants, to the extent necessary to substantiate such warranty, that the aforementioned obligation will be complied with by its directors, employees, appointees, agents, consultants, or other representatives. The foregoing does not affect Digital Climax’s right to use the technical know-how it acquires under the Agreement for other Services for other Clients. This Section I.8.1 is without prejudice to Section I.8.4.

• Without prejudice to Article I.10.3 below and its obligations under the GDPR, the Customer shall take the necessary measures to protect the confidential information from unauthorized disclosure to third parties or to agents, subcontractors, or personnel who do not have authorized access to the confidential information.

• Digital Climax and the Customer are required to comply with the applicable legal provisions regarding the protection of personal data under the GDPR and under any other applicable legislation. The Customer agrees to be bound by Digital Climax’s privacy policy, available at https://www.digital-climax.be/privacy/. The Customer is obligated to indemnify and hold Digital Climax harmless from and against all rights, claims, and demands brought against Digital Climax as a result of the Customer’s violation of the aforementioned applicable legal provisions regarding the protection of personal data.

• Unless otherwise agreed in writing by the Parties, Digital Climax has the right to place a reference to Digital Climax and its website on the Client’s Website that Digital Climax developed in connection with the performance of the Agreement.

• Unless otherwise agreed in writing between the Parties, Digital Climax has the right to post a reference to the Client on its own Website, for example, in the form of a client testimonial or a completed project.

9. Non-recruitment

• During the term of the Agreement and for a period of 1 year following the termination date of the Agreement, the Customer shall not, without the prior written consent of Digital Climax, either directly or indirectly, (a) induce or attempt to induce an employee of Digital Climax to terminate his or her employment with Digital Climax, (b) hire an employee of Digital Climax or a person who was formerly an employee of Digital Climax, or otherwise engage such person as an independent contractor or in any other capacity, and (c) induce or attempt to induce any person who has a consulting or similar agreement with Digital Climax to leave his or her position or terminate his or her agreement.

• The prohibition set forth in Article I.9.1 is limited to Digital Climax’s collaboration with a person covered by Article I.9.1 in Belgium.

• In the event of a breach of Article I.9.1, Digital Climax shall be entitled, by operation of law and without prior notice of default, to compensation equal to twice the gross annual compensation for the year preceding the breach (if the employee was a salaried employee) or twice the compensation paid over a one-year period preceding the breach (if the individual was a self-employed contractor) to the poached employee or self-employed contractor, without prejudice to Digital Climax’s right to additional compensation if grounds for such exist. If the employee or self-employed contractor in question had been employed by or working for Digital Climax for less than one year prior to the breach, the compensation paid will be prorated to an annual amount.

10. Content of the Creations Developed by Digital Climax

• The Customer is required to use Digital Climax’s Creations exclusively for legitimate purposes.

• The Customer is not permitted to use Digital Climax’s Creations—specifically, websites, online stores, and web applications developed by Digital Climax—for discriminatory, intolerant, hateful, inflammatory, pornographic, pedophilic, terrorist purposes, e.g., in the form of messages and images with such content or in the form of hyperlinks or references to websites containing such content.

• The Customer is not permitted to use the Websites, Webshops, and Web Applications developed by Digital Climax for the promotion, distribution, or sale of illegal goods and services, such as drugs, prohibited medications, and prohibited weapons.

11. Miscellaneous

• The nullity, invalidity, or unenforceability of one or more provisions of the Agreement shall in no way result in the nullity, invalidity, and/or unenforceability of the remaining provisions of the Agreement. If any provision exceeds any statutory limitation, the provision in question or the portion thereof shall not be void, but the parties shall be deemed to have agreed that such provision or the conflicting part thereof shall be reduced or limited to the maximum extent permitted under applicable law, and any provision or part thereof thatexceeds these limits shall be automatically amended or replaced by a valid clause that most closely reflects the parties’ intent. The court has the authority to amend the void, invalid, or unenforceable provision in such a way that it becomes valid and enforceable while remaining as close as possible to the original intent of the parties.

• The Customer warrants, to the extent necessary to give effect to this Agreement, that its representatives and/or agents will comply with the provisions of the Agreement.

• The Customer is not entitled to assign its rights and obligations under the Agreement, in whole or in part, to third parties without the written consent of Digital Climax. Digital Climax, on the other hand, has the right to assign its rights and/or obligations under the Agreement to third parties. In such cases, this transfer shall be enforceable against the Customer upon simple written notice from Digital Climax, after which the latter shall be released from its contractual obligations. In the event of such a transfer, the Agreement shall continue in full force and effect between the Customer and the third party.

• Unless otherwise specified, all notices under this Agreement shall be sent to Digital Climax’s email address, on the one hand, and to the Customer’s email address as specified in the Special Terms and Conditions, on the other hand.

• The Customer acknowledges that the Agreement may be signed electronically
  in accordance with applicable European and Belgian regulations, in particular Regulation (EU) No. 910/2014 of the European Parliament and of the Council of July 23, 2014, and the Belgian Act of July 21, 2016. Each of the Parties acknowledges, accepts, and agrees (i) that the electronic signature it affixes to this document has the same legal validity as its handwritten signature, (ii) that the technical means implemented in connection with this signature assign a definitive date to this document, and (iii) that the signature process used by the Parties to electronically sign this document enables each of them to possess or access a copy of this document on a durable medium.

12. Applicable Law and Jurisdiction

• The Agreement (including the General Terms and Conditions) is governed exclusively by Belgian law.

• Only the courts of Antwerp (Antwerp division(s)) have jurisdiction to hear any dispute concerning the validity, interpretation, or performance of the Agreement (including the General Terms and Conditions).

1. Special Section: Web Design, Web Application Design, and Online Store Design
2. Billing and Payment

• The fee for web design, web application design, and online store design, as specified in the Special Terms and Conditions, is payable as follows (upon receipt of the relevant invoice):

1. 50% of the agreed-upon price within 8 days of the conclusion of the Agreement.

1. 25% upon delivery of the first version of the website, web application , or online store.

1. The balance upon delivery of the final version of the Website, Web Application , or Web Store.

• If the Customer, despite a request from Digital Climax sent to the Customer via email, fails to approve draft versions of the Website, Web Application , or Web Store (in accordance with Article II.2.2), thereby preventing the completion and delivery of the final versions thereof, Digital Climax shall have the right to invoice the Customer for the balance.

2. Completion

• Digital Climax delivers the design versions of the Website, Web Application q. Webshop via a secure connection to a local server on which the relevant design versions are hosted.

• Upon delivery of each draft version of the Website, Web Application , or Web Store , the Client is required to notify Digital Climax via email of any reasonable comments regarding the relevant version within 15 calendar days of delivery. If the Client does not submit any comments within the aforementioned 15-calendar-day period, the Client is deemed to have approved the relevant design version. The final version of the Website, Web Application , or Webshop will only be published online after final approval by the Client.

• Digital Climax undertakes to correct any minor defects (e.g., spelling errors, blurry photos, minor technical errors) in the Website, Web Application , or Web Store after delivery of the final version , in accordance with Article I.3.9.

3. Liability

• Digital Climax provides the Website, Web Store, and Web Application “as is.”

• Digital Climax cannot guarantee that the Website, Webshop , or Web Application is completely free of bugs and/or errors.

• Digital Climax is not liable for the services and applications of third parties to which the Website, the Webshop, and/or the Web Application are linked, nor for the plug-ins provided by third parties to connect the services and applications of third parties to the Website, the Webshop, and/or the Web Application, e.g., (plug-ins for connecting to) payment applications provided by banks.

III. Special Section: SEO Services

1. Procedure

• Digital Climax will begin performing the Agreement regarding SEO Services, including a (technical) analysis of the Client’s Website, as part of the SEO setup as set forth in the Special Terms and Conditions.

• The services provided under the SEO Services are limited to those specified in the Special Terms and Conditions.

• If Digital Climax needs to make changes to the Client’s Website as part of the SEO Services, such work shall be limited to changes to the Client’s existing Website. The web design of a completely new Website is not included in the scope of the SEO Services. If the development of a new website proves necessary as part of the SEO Services, the Parties will enter into a separate agreement for this purpose, and the Client will owe Digital Climax a separate fee for such services.

2. Billing and Payment

• Under an Agreement regarding SEO Services, Digital Climax is entitled to (i) a one-time setup fee and (ii) monthly fees. The nature and scope of these fees are specified in the Special Terms and Conditions.

• The setup fee under an Agreement for SEO Services is payable no later than the start of the provision of the SEO Services, upon receipt of the relevant invoice.

• The monthly fees under an Agreement for SEO Services are payable monthly in advance no later than the first Business Day of the month to which the fee relates, upon receipt of the relevant invoice.

• Any additional services not provided for in the Special Terms and Conditions regarding SEO Services will be billed separately to the Client in accordance with Digital Climax’s rates in effect at that time.

3. Term and Termination

• The Agreement regarding SEO Services is entered into for an indefinite term. However, during the first 6 months following the effective date of the Agreement, the Agreement may not be terminated, subject to Articles I.5.3 through I.5.7 and Articles II.3.2 and II.3.3. Upon the expiration of the aforementioned 6-month period following the effective date, and after the aforementioned 6-month period following the effective date, both Parties have the right to terminate the Agreement Regarding SEO Services at any time by registered letter with a notice period of 1 month. The notice period begins on the first day of the month following the month in which notice of termination was given.

• If the Client terminates the Agreement regarding SEO Services in violation of the preceding paragraph, Digital Climax is entitled to a termination fee. If the Customer terminates the Agreement regarding SEO Services during the initial 6-month term, with the termination date falling before the end of the aforementioned 6-month term, the termination fee shall be equal to 50% of the then-current agreed-upon fee for SEO Services that the Customer owes for the relevant initial 6-month term. The termination fee may never be less than 1 month’s agreed-upon fee for SEO Services in effect at that time. If the Client terminates the Agreement after the initial 6-month term, the termination fee shall be equal to 1 month’s agreed-upon fee for SEO Services then in effect, which the Client owes for the relevant month. In both cases, Digital Climax is entitled to the normal fee for services already rendered and costs already incurred, as well as to the setup fee as specified in Article III.2.1.

• In connection with SEO Services, Digital Climax has the right to terminate the Agreement prematurely after completing the analysis, e.g., if, after analyzing the Client’s Website, Digital Climax determines that SEO is not feasible for that Website due to its structure and/or technical settings and/or design, and/or if there is insufficient search volume for a particular keyword. In such cases, the Client is not entitled to a refund of the amount invoiced by Digital Climax to the Client for the SEO setup, as set forth in the Special Terms and Conditions.

4. Liability

• Digital Climax’s obligations under the Agreement regarding SEO Services are best-efforts obligations. Digital Climax will use its best efforts to improve the Client’s ranking in search engine results. The Client acknowledges and accepts that the results of SEO Services depend on external factors beyond Digital Climax’s control, such as technical measures and investments made by third parties as part of their own SEO efforts.

• Digital Climax does not guarantee any specific results in connection with its SEO services.

1. Special Section: Online Advertising and Content Marketing
2. Billing and Payment

• Under an Agreement regarding Online Advertising and Content Marketing, Digital Climax is entitled to (i) a one-time setup fee and (ii) monthly fees. The nature and scope of these fees are specified in the Special Terms and Conditions.

• The setup fee under an Agreement regarding Online Advertising and Content Marketing is payable no later than the start of the Online Advertising and Content Marketing services, upon receipt of the relevant invoice.

• The monthly fees under an Agreement regarding Online Advertising and Content Marketing are payable monthly in advance no later than the first Business Day of the month to which the relevant fee relates, upon receipt of the corresponding invoice.

• Any additional services not provided for in the Special Terms and Conditions regarding Online Advertising and Content Marketing will be billed separately to the Client in accordance with Digital Climax’s rates in effect at that time. The prices listed in the Special Terms and Conditions regarding Online Advertising and Content Marketing do not include the advertising budget used to pay for the platforms on which the advertisements will be placed.

2. Term and Termination

• The Agreement Regarding Online Advertising and Content Marketing is entered into for an indefinite term. However, during the first 3 months following the effective date of the Agreement, the Agreement may not be terminated, subject to Articles I.5.3 through I.5.7 and Article IV.2.2. Upon the expiration of the aforementioned 3-month period following the effective date and after the aforementioned 3-month period following the effective date, both Parties have the right to terminate the Agreement regarding Online Advertising and Content Marketing at any time by registered letter with one month’s notice. The notice period begins on the first day of the month following the month in which notice of termination was given.

• If the Customer terminates the Agreement regarding Online Advertising and Content Marketing in violation of the preceding paragraph, Digital Climax is entitled to a termination fee. If the Client terminates the Agreement regarding Online Advertising and Content Marketing during the initial 3-month term, with the termination date falling before the end of the aforementioned 3-month term, the termination fee shall be equal to 50% of the then-current agreed-upon fee for Online Advertising and Content Marketing that the Customer owes for the relevant initial 3-month term. The termination fee may never be less than 1 month’s agreed-upon fee for Online Advertising and Content Marketing in effect at that time. If the Client terminates the Agreement after the initial 3-month term, the termination fee shall be equal to 1 month’s agreed-upon fee for Online Advertising and Content Marketing then in effect, which the Client owes for the relevant month. In both cases, Digital Climax is entitled to the normal fee for services already rendered and costs already incurred, as well as to the setup fee as specified in Article IV.1.1.

1. Special Section: Hosting
2. Subcontractors

• The Customer acknowledges and agrees that Digital Climax relies on third-party hosting providers for hosting services.

• The Customer agrees to the provisions in the external Hosting Provider’s terms and conditions regarding the term and termination of the relevant Agreement, regarding the validity period and price adjustments of the relevant Hosting Provider, regarding the delivery, payment, and dispute resolution periods as set forth by the relevant Hosting Provider, regarding the rules of conduct and the so-called “notice and takedown” provisions as set forth by the relevant Hosting Provider, and the relevant Hosting Provider’s limitations of liability are applicable and enforceable against him. The relevant terms and conditions of the external hosting provider in effect at the time the Agreement enters into force are attached as an appendix to these General Terms and Conditions. If the terms and conditions of the external hosting provider conflict with these General Terms and Conditions, and provided that, in the event of a conflict, the terms and conditions of the external hosting provider grant the hosting provider more rights than those granted to Digital Climax in these General Terms and Conditions, they shall take precedence over these General Terms and Conditions. These General Terms and Conditions apply in addition to the general terms and conditions of the relevant external service provider.

• Digital Climax has the right, during the term of the Agreement, to collaborate with a hosting provider other than the one in use at the time the Agreement takes effect. In such a case, Digital Climax will notify the Customer in writing, along with the relevant terms and conditions of the external hosting provider, 60 days prior to the transfer taking effect. If the Customer does not object to the amended terms and conditions within 15 days of the aforementioned notification via email to info@digital-climax.be, the relevant provisions of the amended terms and conditions will automatically take effect and apply to the current Agreements. If the Customer does object within the aforementioned period via email to info@digital-climax.be, the Agreement regarding Hosting will terminate one month after the Customer’s notice. In such cases, the Customer is required to enter into a contract with another hosting provider on their own to ensure the continuity of their website’s hosting. In such cases, Digital Climax will make the necessary files and code available to the Customer to facilitate the transfer of the hosting and will provide reasonable cooperation for the transfer of the hosting.

2. Scope

A certain amount of server space, as specified in the Special Terms and Conditions, is reserved for the Hosting Services. If the amount of data stored by the Customer on the relevant server exceeds the amount of server space available to the Customer, the Customer is required to rent additional server space. If the Customer refuses to do so, the Customer shall be solely responsible for all necessary consequences arising therefrom and waives all rights, claims, and entitlements in this regard against Digital Climax.

3. Liability

• Digital Climax assumes no responsibility for the data and files that the Customer stores via the Hosting Services.

• The Customer is solely responsible for the data and files that the Customer stores via the Hosting Services. The Customer warrants that it possesses all necessary rights and permissions in this regard. The Customer is not permitted to use the applications hosted via Digital Climax (e.g., websites) for the storage and/or distribution of (i) unlawful, intimidating, defamatory, offensive, discriminatory, and/or harmful data and files, and/or (ii) data and files that infringe the rights of third parties, e.g., by infringing Intellectual Property Rights.

• The Customer accepts full responsibility for the data and files it hosts and agrees to fully indemnify and hold Digital Climax harmless from any and all rights, claims, and demands that may be brought against Digital Climax in this regard.

• Digital Climax is not liable for any defects, malfunctions, or unavailability of the Website, the Webshop, and/or the Web Application hosted by Digital Climax that are attributable to network and/or communication problems.

1. Special Section: Maintenance
2. Subject

• In addition to web design and the design of a web store and web application, the Client has the option to enter into a Maintenance Agreement with Digital Climax regarding the aforementioned website, web store , and web application.

• Digital Climax’s Maintenance Services apply exclusively to:

1. Preventive maintenance performed exclusively by:

1. periodic checks on the operation of the relevant website, online store , or web application ;

1. A monthly update—or more frequently if necessary—of the relevant website, online store , or web application to ensure its proper functioning.

1. Corrective maintenance performed exclusively by:

1. Updates to the relevant Website, Web Store , or Web Application in order to restore their proper functioning;

1. technical adjustments to the Website, Web Store , or Web Application in order to restore their proper functioning.

• If the Customer experiences problems with the Website, Webshop , or Web Application , they may contact Digital Climax on Business Days. Digital Climax does not provide maintenance services outside of Business Days. If Digital Climax determines that the issues are caused by a defect in the Website, Webshop , or Web Application , the corrective maintenance services are covered under the Maintenance Agreement with the Customer. If Digital Climax determines that the issues are not caused by a defect in the Website, Webshop , or Web Application , Digital Climax is entitled to charge the Customer for its work at its then-current rates.

• Digital Climax does not guarantee any specific results. The Maintenance Agreement does not constitute an SLA.

• During maintenance work, the Website, Webshop , or Web Application may be unavailable, or the functionality of the Website, Webshop , or Web Application may be limited. The Customer waives all rights, claims, and demands against Digital Climax in this regard.

• To the extent possible, Digital Climax will notify the Customer in advance of any maintenance work that may affect the functionality and/or availability of the Website, Webshop , or Web Application .

2. Billing

Maintenance services are billed to the Customer monthly in advance.

3. Term and Termination

• The Agreement regarding the maintenance of the Website, Web Application, and/or Web Store is entered into for an indefinite term. However, during the first 12 months following the effective date of the Agreement, the Agreement may not be terminated, subject to Articles I.5.3 through I.5.7 and Article VI.3.2 Upon the expiration of the aforementioned 12-month period following the effective date and after the aforementioned 12-month period following the effective date, both Parties have the right to terminate the Agreement regarding SEO Services at any time by registered letter with one month’s notice. The notice period begins on the first day of the month following the month in which notice of termination was given.

• If the Customer terminates the Agreement regarding the maintenance of the Website, Web Application, and/or Webshop in violation of the preceding paragraph, Digital Climax is entitled to a termination fee. If the Customer terminates the Agreement regarding the maintenance of the Website, Web Application, and/or Web Store during the initial 12-month term, with the termination date falling before the end of the aforementioned 12-month term, the termination fee shall be equal to 50% of the then-current agreed-upon fee for maintenance of the Website, Web Application, and/or Webshop that the Customer owes for the relevant initial 12-month term. The termination fee may never be less than 1 month’s agreed-upon fee then in effect for Online Advertising and Content Marketing. If the Client terminates the Agreement after the initial 12-month term, the termination fee is equal to 1 month’s agreed-upon fee then in effect for the maintenance of the Website, Web Application, and/or Webshop that the Client owes for the relevant month. In both cases, Digital Climax is entitled to the normal fee for services already rendered and costs already incurred.