1. APPLICATION AND INTERPRETATION
These general terms and conditions alone govern all contractual relations between TEZAKI SPRL incorporated under the company number 0842.116.485 and located at Avenue Emile Francqui, 6/3 in 1435 MONT-SAINT-GUIBERT, Belgium (hereafter referred to as “TEZAKI”) and the customer.
The general and special conditions of the customer are not enforceable with respect to TEZAKI. Any agreement between the parties shall automatically mean acceptance of these general terms and conditions. Only the special conditions specified in the contract or agreed in writing between the parties may depart from them.
Depending on the context and except in the event of a stipulation to the contrary, (i) the term “customer” shall be construed as also any prospect, client, purchaser, licensee, distributor, or any party entering into an agreement with TEZAKI; (ii) the term “contract” as also any offer, proposal, order form, delivery, service, license, distribution contract or any agreement between the parties; (iii) the term “services” also as any IT service, solution, software, program, live buzz tool such as the SocialWall Pro, code, key, prove of concept supplied, developed and/or marketed by TEZAKI.
2. ORDER AND CONFIRMATION
All offers are made without engagement. Offers are valid for a maximum period of 30 days from the date of the offer, unless otherwise explicitly agreed. Any specification or data contained in TEZAKI's service information, brochure, price lists, web site or any other documents are given for information only. Service specification and prices can be modified at any time without prior notice. All orders made in writing or orally shall be confirmed by TEZAKI in writing (letter, fax or email).
In the event that the contract concerns the live buzz tool named SocialWall Pro system, TEZAKI hereby grants to the customer the ordinary non-exclusive and non-transferable right to use of the contractual SocialWall Pro System in order to show, in real time, on a wall or on a screen, some messages or Tweets, sent on social media networks such as Twitter, containing keywords (or related to some criteria) defined by the event organizer.
Police, style and form are limited to what is described in the service information sheet.
A moderation system is available, if ordered and paid by the customer, in order to filters and withdraw irrelevant or offensive Tweets.
TEZAKI undertakes to use its best endeavors and all reasonable care to perform its obligations in conformity with the terms and requirements agreed by the parties in their written contract.
TEZAKI is allowed to interrupt access to the SocialWall Pro system and suspend any features of the services, permanently or temporarily, without prior notice, to certain guests or users, at any time and without owing any damage compensation or penalty to the customer. Such interruption may be decided for reasons such as inappropriate, offensive, illegal, racist, sexist, obscene, pornographic, defamatory, libelous, slanderous, false, insulting or abusive messages and Tweets. TEZAKI may also retain the right to create limits on use and storage at its sole discretion at any time without prior notice to the Customer.
TEZAKI agrees to perform the services only for professionals or for consumers being at least 18 years old.
Each license right is limited to only one work station that directly or indirectly accesses or uses the services.
The Internet connection, computers, beamer, wall or screen, moderation services, electric cables, electricity and any item or services not listed in the contract are not included in the price.
TEZAKI reserves the right to make changes in specifications of the services without prior notice or agreement as long as such changes do not affect the performance of the services.
The customer agrees that any change required by him and departing from the initial contract may extend the delivery term and increase the price.
In the event that the customer refuses or delays accepting or receiving the services, it shall make the payment(s) in accordance with the terms and conditions initially agreed by the parties, and reimburse to TEZAKI all costs caused by the refusal or delay caused by the customer.
Nevertheless in case that an event during which the SocialWall Pro System was meant to be used, is canceled before it starts, the customer is allowed to postpone the performance of the relevant contract to another date within maximum 12 months from the date of cancellation, without owing to TEZAKI any damage, penalty or additional price.
TEZAKI has the right to suspend its own obligation to deliver the services or to make them available, in the event there is any evidence of insolvency or nonpayment problem of the customer.
Except otherwise specified in the contract, the services are performed according to the specifications agreed in the contract or in any written agreement(s) made afterwards by the parties. Any additional costs related to change(s) required by the customer which depart from the contract agreed by the parties shall be borne by the customer and may extend the delivery term(s).
TEZAKI does not represent or warrant that use of the services will be uninterrupted, timely secure or free from error, from transmission alteration or failure, from bugs or loss of data or will not suffer of data failure. Nevertheless, TEZAKI undertakes to use its best endeavors and all reasonable care to find solutions for such failures.
5. PRICES AND PAYMENT TERMS
Prices of services are VAT excluded, are indicative only and shall not be construed as fixed or set prices. Final price may depend of the amount of time and obligations actually performed for the customer.
Except otherwise agreed by the parties, 100% of the price of the services will be invoiced to the customer directly upon conclusion of each contract. Except otherwise agreed by the Parties, payments shall be made in EUR, GBP or in USD by PayPal or by IBAN and/or BIC / SWIFT wire transfer to such account specified on the invoices, within 8 days from the dates of the invoices. Checks are not accepted as mean of payment.
Any payment - which is not paid on the due date, nor in accordance with the conditions specified in the contract or invoices - shall accrue interest at a rate of 1 % per month, with a minimum of 200 EUR per breach, without prejudice to the right to reimbursement of the costs or compensation for any higher actual damage. In case of no payment on the due dates, TEZAKI reserves the right to suspend any of its own obligations until all payment due to TEZAKI is made by the customer; or to terminate the contract, and keep all installments or payments already made by the customer to TEZAKI, without prejudice to the right to reimbursement of the costs or compensation for any actual direct or indirect damage resulting from a delay of payment suffered by TEZAKI, its customers, or by a third party.
6. LIMITATION OF LIABILITY
If any liability is implied for whatever reason, TEZAKI’s liability shall be strictly limited to direct, typical and foreseeable damages suffered by the customer (excluding, among others, any indirect, incidental, special, consequential or punitive damages, loss of data, of earnings, of profits, of goodwill, of savings, of reputation or of clientele, increase of costs and expenses or any indirect damage and loss) that are the exclusive and direct consequences of a gross and willful misconduct of TEZAKI. Any compensation due by TEZAKI shall ever exceed 10% of the value of the contract.
TEZAKI shall not be liable, anyhow, for the use made with the software or with the SocialWall Pro, nor for any form or content of Tweets or messages submitted, posted or displayed via the SocialWall Pro system, especially if they are considered as inappropriate, offensive, illegal, racist, sexist, obscene, pornographic, defamatory, libelous, slanderous, false, insulting or abusive and any consequences thereof, even in case of use of the moderation system. TEZAKI does not endorse any opinions expressed via the Services.
7. FORCE MAJEURE
The parties are not liable for the non-performance of any one of their contractual obligations when this non-performance is due to a force majeure event, beyond their control and when it cannot reasonably be expected of them to take it into consideration at the time of making the contract or to prevent or overcome it, even when this event does not make the performance of the contract totally impossible but only substantially more difficult or more onerous, particularly in the event of fire, strike, accident, illness, natural disaster, destruction of installations or equipment, lack of supplies or of means of transport, lack of electricity, delay with or non-performance of the obligations of TEZAKI’s suppliers or sub-contractors, computer bugs, unavailability of Twitter, problem with the Internet network, with the provider, with the hosting, with the WIFI or with the hardware, any technical problems whatsoever and a legal or administrative procedure which delays the fulfilment of one party’s obligations.
The defaulting party in these circumstances must warn the other party of this as soon as possible, in writing, including proof of the case of force majeure. The obligations of the parties whose performance has become impossible due to a case of force majeure can be suspended provisionally or automatically be terminated, without indemnity, save for agreement to the contrary by the parties.
8. CONFIDENTIALITY AND INTELLECTUAL PROPERTY
The customer is and shall remain the exclusive and sole owner of, and TEZAKI shall keep strictly confidential and not disclose to any third party(ies) nor use, nor copy, nor imitate any data, information, documents, trade secret, know-how owned first by the customer, except to the extent required to ensure the appropriate performance of the contract.
TEZAKI is and shall remain the exclusive and sole owner of and the customer shall keep strictly confidential and not disclose to any third party(ies) nor use, nor copy, nor imitate any technical, development information, technique, process, experimental work, software, program, IT Solution, demo, code sources, prove of concept, upgrade(s), improvement, access code, key, trade secret, know-how of TEZAKI or other confidential matter relating to the services, to TEZAKI or to the contract, except to the extent required to ensure the appropriate performance of the contract. TEZAKI’s brand names, trades names, logos and other distinctive brand features shall also remain the exclusive and entire property of TEZAKI.
The customer may not reverse engineer, decompile, or disassemble the SocialWall Pro system or the software, except and only to the extent that it is expressly permitted by TEZAKI.
These obligations shall survive cancellation, termination or nullity of the contract and shall continue to apply for an unlimited period of time.
The customer authorizes TEZAKI to publish in its brochures or any other advertising or electronic support including or not photography or video, the name of the customer as a customer reference, the list of services the customer ordered, the screenshots, the session addresses, without owing anything to the customer and without any prior authorization.
TEZAKI reserves the right to terminate the contract or suspend its own obligations, anytime, without prior notice nor damages for the customer, and without prejudice to the right to reimbursement of the costs or compensation for any actual direct or indirect damage resulting from it, including loss of earnings, suffered by TEZAKI, its customers, or by a third party, for the following reasons:
in the event of late or non performance of the customer’s obligations, or if it becomes reasonably certain that one or more obligations of the customer will not be performed on time or according the terms of the contract;
in the event of the incapacity, bankruptcy, insolvency, protest, seizure, death, cessation of payments, application for a payment moratorium, amicable or compulsory composition, or any other event demonstrating financial difficulties on the part of the customer;
in the event of TEZAKI ceasing or changing its professional activities;
in the event of force majeure.
In case of termination by the customer not caused by a gross and willful misconduct of TEZAKI, all installments already paid by the customer shall be considered to be definitively acquired by TEZAKI. The remaining installments shall be paid by the customer and shall reach a minimum indemnification of 50% of the total price, without prejudice to the right to compensation in the event that actual damage is more important for TEZAKI.
11. APPLICABLE LAW AND COMPETENT JURISDICTION
This contract shall be governed by and constructed in all respects in accordance with the laws of Belgium.
The Parties hereby undertake to apply the CEPANI Rules of Mediation (http://www.cepani.be/EN/) to all disputes arising out of or in relation with this Agreement. The seat of the mediation shall be Brussels.
Should the mediation fail, the dispute shall be settled by the Courts of Namur.