Bonito Studio General Terms and Conditions
1. Definitions and interpretation
1.1. Unless expressly provided otherwise, the following terms, indicated with a capital letter, shall have the following meaning:
Additional Services: These are all (changes to) Services and related costs that were not included in the price stipulated in the Order Form.
Agreement: The agreement concluded between Maraca and theCustomer, consisting of Maraca’s special terms and conditions (e.g. the OrderForm), the agreed appendices, and these General Terms and Conditions.
CEL: The Belgian Code of Economic Law (“Wetboek Economisch Recht”).
Customer: The enterprise, company, government, NPO, or any other legal entity that concludes an Agreement with Maraca.
Force majeure: Any event which renders fulfilment of the Maraca’s commitment reasonably impossible, particularly difficult or particularly expensive, even if it was already foreseeable at the time of its conclusion, such as, but not limited to government action, riot, disturbance, accident, war, boycott, act of God, epidemic, pandemic, disease, fire, flood, hurricane, earthquake, lightning strike and explosion, or other unforeseen and unavoidable cause or circumstance beyond the reasonable control of Maraca.
GDPR: General Data Protection Regulation (EU) 2016/679of 27 April 2016.
General Terms and Conditions: These Maraca general terms and conditions.
Intellectual Property Rights: All artistic and industrial property rights, such as patents, trademarks, drawings and models, copyrights (including software rights), database rights, rights to trade secrets and know-how, whether registered or not), and all applications for the same rights and all rights or forms of protection of equivalent or similar effect to the aforesaid that would exist anywhere in the world.
Maraca: Maraca Digital BV, private limited company under Belgian law, with registered office at Schrieksesteenweg 108, 2221 Heist-op-den-Berg (Belgium), with enterprise number (TAV) (BE)0748.921.162, and with email address firstname.lastname@example.org. Also known as ‘Bonito Studio’.
Order Form: As defined in Article 3.5.
Services: The services or works performed by Maraca on behalf of the Customer as determined and described in the Agreement, such as brand development and website design.
1.2. In addition to the concepts set forth above, other concepts may be defined in the General Terms and Conditions which, when capitalised, shall have the meaning assigned to them in the General Terms and Conditions.
1.3. The concepts defined in the singular shall have a similar meaning in the plural and vice versa.
1.4. Headings are included for clarity and for reference in the context of these General Terms and Conditions themselves, and are not intended for interpretation. Nor will they limit the content of the General Terms and Conditions.
1.5. A reference to an Article is a reference to an article within these General Terms and Conditions, unless expressly stipulated otherwise.
1.6. Terms such as “including”, “e.g.”, “especially”,“such as” imply a non-exhaustive list.
2.1. These General Terms and Conditions apply in full to each quotation and Order Form of, each Agreement with, each and all (Additional) Services by, each invoice from and, in general, each transaction of Maraca, unless otherwise agreed in writing with Maraca.
2.2. In absence of proof to the contrary, the Customer confirms to have taken note of these General Terms and Conditions and to accept them unconditionally. By executing the Agreement, the Customer confirms that he has read these General Terms and Conditions and accepts them unconditionally.
2.3. The Customer acknowledges that the application of any of its own (general or special) terms and conditions is expressly excluded.
2.4. Maraca has the right to amend the Agreement and/or these General Terms and Conditions at any time, subject to the prior consent of the Customer (which may be evidenced i.e. by the subsequent performance of the Agreement).
2.5. In the event of a conflict between these General Terms and Conditions and the Agreement, the Agreement takes precedence over these General Terms and Conditions.
2.6. The Agreement is without prejudice to the application of mandatory legislation for the protection of companies i.e. article I.1.1° CEL and article I.8.39° CEL.
3. Pre-contractual information, quotation and conclusion of the Agreement
3.1. By requesting a quotation, the Customer accepts the unconditional applicability of these General Terms and Conditions.
3.2. The Customer is obliged, prior to his request for a quotation, to provide Maraca with all information and documentation that may have an impact on the execution of the Services, e.g. in order to facilitate their execution, including all personal and/or company data, and information regarding the rights of third parties (e.g. personal and/or business rights).
3.3. Unless otherwise stated in the quotation, Maraca’s quotations are purely informative, only contain a non-binding proposal to negotiate an agreement (and are not an offer), and are only valid for 15 calendar days.
3.4. All Maraca’s quotations are subject to material error and are solely based on the information supplied by the Customer in accordance with Article 3.2. If during the execution of the Agreement, it appears that the information or documentation supplied by the Customer was incorrect or incomplete, this may result in an adjustment of the Agreement (the execution period, the price, theServices, etc.) and the resulting Additional Services shall be charged exclusively to the Customer, without prejudice to Maraca’s other rights.
3.5. A binding Agreement between Maraca and the Customer is only concluded at the moment that Maraca receives a quotation dated and signed by the Customer (hereinafter:an “Order Form”). Order Forms can only be accepted by the Customer without any reservation or amendment. Changes made to Maraca’s Order Form are only valid if Maraca has accepted them in writing.
3.6. In case of problems regarding the Order Form, e.g. an incomplete or incorrect Order Form, the provision of clearly incorrect data, non-payment for previous services, in the event of attempted fraud, refusal of approval by the Customer’s financial institution or the failure to confirm payment by the financial institution, Maraca reserves the right to suspend and/or refuse confirmation of the Order Form and therefore the provision of the Services, without requiring any justification for such.
4. The Services
4.1. The Customer is at all times, unless explicitly stated otherwise in the Order Form, solely responsible for all insurances, permits and permissions required for theServices and for the business to which the Services relate. The Customer is obliged to comply with all applicable law (local, region, national, international, etc.) and to use the Services for legitimate purposes only. Any compensation or fines as a result of a breach of the foregoing are fully for the expense of the Customer. In such case, the Customer shall indemnify Maraca in full.
4.2. The Customer will provide Maraca with all the cooperation necessary to enable Maraca to perform the Services or to facilitate their performance. If the Services have to be performed in the buildings, location(s), branch(es) or company/companies of the Customer, the Customer will take care of all necessary infrastructure and the availability of resources free of charge (e.g. staff assistance) to perform the Services. Without prejudice to Article 10 Maraca is not liable for any delay caused by the absent, defective or delayed delivery of cooperation by the Customer or third parties. In such a case, Maraca is in noway liable for any (direct or indirect) damage that the Customer or third parties would suffer as a result.
4.3. All changes to the Services or Additional Services ordered by the Customer, for what reason whatsoever, as well as the determination of the price thereof, require the prior agreement of both the Customer and Maraca. The agreement can be proven by all legal means, e.g.by the non-protested performance of the Services by Maraca.
5. The rights and obligations of Maraca
5.1. Maraca will make every effort to provide the Services to the Customer in accordance with the Agreement, without this being regarded in any way as an obligation of result on the part of Maraca. Unless specifically stated otherwise, Maraca is solely subject to an obligation of effort.
5.2. Although Maraca does its utmost best to provide the Services within specific deadlines, circumstances may arise that make this impossible for Maraca. In such cases, Maraca will contact the Customer in advance to work out a solution in consultation with the Customer. Unless otherwise agreed in writing, the delivery or execution times communicated by Maraca are purely indicative. Exceeding these deadlines will in no way give rise to any compensation or termination of theAgreement at Maraca’s expense.
5.3. Maraca has the right to call on subcontractors, external suppliers, partners, etc. for the performance of any or all (Additional) Services.
5.4. Maraca is entitled to perform the Agreement in different phases and to invoice the Customer separately for the part thus performed.
5.5. If the execution of the Services is interrupted for a period of more than 30 calendar days due to Force Majeure, while the agreed invoicing time has not yet elapsed, Maraca shall be entitled to issue invoices for the value of the Services already executed and the costs already incurred by Maraca, as well as to prepare advance invoices.
5.6 By accepting the provided Services, the Customer acknowledges that Maraca has properly performed the Services. If the Customer is asked to sign performance sheets, work orders or delivery notes, the signing thereof shall constitute irrefutable proof of the Customer's acceptance of the Services mentioned therein.
6. Prices - Payment
6.1. The price is determined in the Order Form and is exclusive of taxes (e.g. VAT) and other (government) (tax) charges. (Additional) taxes and charges shall be borne solely by the Customer.
6.2. Unless agreed otherwise, the price in Maraca’s quotation is not a fixed price.
6.3. Any Additional Services as set out in Article 4.3 shall be borne by the Customer and shall be invoiced additionally as agreed upon at the time of the additional order.
6.4. The Customer agrees to receive only electronic invoices.
6.5. The place of performance of the Customer’s commitments is at Maraca’s registered office.
6.6. Unless otherwise agreed in writing and without prejudice to Article 6.9, all invoices by Maraca shall be payable within 15 calendar days of the invoice date.
6.7. An invoice can only be validly protested within a period of 15 calendar days from the invoice date by means of a registered and substantiated letter. Any invoice that has not been protested in the aforementioned manner shall irrevocably be accepted.
6.8. In the absence of payment by the due date, Maraca is legally and without notice of default entitled to the payment of (i) a default interest from the due date of the invoice until the date of full payment at an interest rate as stipulated in article 5 of the Belgian Act of 2 August 2002 on combating late payment in commercial transactions and (ii) a fixed compensation of 10% of the unpaid invoice amount with a minimum of EUR 100,-.The aforementioned without prejudice to the right of Maraca to claim higher compensation should its damages be higher. Furthermore, and without prejudice to Maraca’s other rights by contract or by law, Maraca shall be entitled to suspend and/or terminate (its obligations under) the Agreement in case the Customer violates its payment obligations and if the Customer fails to remedy such violation within a remedy period of 15 calendar days after notification by Maraca.
6.9. In the absence of full and timely payment of one or more invoices, all outstanding but not yet due invoices shall become due and payable by right and without prior notice of default.
6.10. All payments made by the Customer shall first be applied to interest, damages and any (legal) costs, and only then to the principal amount of the longest overdue invoice(s).
6.11. If the Customer consists of several persons (natural or legal persons), these are jointly and severally obliged to make the payments to which the Agreement obliges them.
6.12. The Customer waives his right to suspension.
6.13. Maraca has the right to set off all amounts that it would owe the Customer for whatever reason with the amounts that the Customer owes Maraca, regardless of whether these amounts are due and payable. Unless Maraca has given its prior written consent, compensation by the Customer shall not be permitted.
6.14. Maraca is entitled to keep in its possession all goods and documents put in its possession by the Customer and all prepared but not yet delivered designs, notes, documents and photos until the Customer has fully met all his obligations towards Maraca.
7. Breaches of contract
7.1. Maraca has the right to suspend its obligations (for example to perform the(Additional) Services) with immediate effect, without being liable for any damage compensation, in the event that the Customer falls short of its obligations under the Agreement, including but not limited to his payment obligations, and Maraca has given the Customer notice of default by registered letter and the Customer has failed to fulfil its contractual obligations within a period of 15 calendar days after the postmark of the aforementioned notice of default. In such a case, Maraca is in no way liable for any (direct or indirect) damage that the Customer or third parties would suffer as a result.
7.2. Each Party has the right to terminate (“ontbinden”) the Agreement with immediate effect and without prior judicial intervention at the other Party’s expense, by written notice, without being liable towards that Party for any termination compensation or damages pursuant to the Agreement or otherwise, and without prejudice to its other rights and remedies by contract or by law, in the event that the other Party breaches one or more of his obligations under the Agreement or these General Terms andConditions and the Customer fails to remedy such breach within 15 calendar days after written notice thereto, unless such remedy period is, given the nature and/or effect of the breach, useless.
7.3. Maraca has the right to terminate (“ontbinden”) this Agreement with immediate effect and without prior judicial intervention at the Customer’s expense in exceptional circumstances making it clear that Customer shall violate its obligations under this Agreement and that the consequences of such breach shall be sufficiently burdensome for Maraca, provided that Customer has failed to provide for sufficient guarantees for proper execution of its obligations within 15 calendar days after written notification thereto from Maraca. The following circumstances shall inter alia qualify as exceptional circumstances making it clear that Customer shall violate its obligations under this Agreement and that the consequences of such breach shall be sufficiently burdensome for Maraca (i) the event that Customer’s solvency is not, or no longer, guaranteed, such as in the event of the issuance of an uncovered cheque, protest of a bill of exchange, negative equity, seizure, respectively by/of/against Reseller (always subject to provisions of binding law or(ii) when the Customer himself states that he will not honour any of its obligations.
7.4. Maraca may terminate (“beëindigen”) this Agreement with immediate effect, by written notice to the Customer, without being liable towards the Customer for any termination compensation or damages pursuant to this Agreement or otherwise if the Customer terminates its business, is declared bankrupt, issues an uncovered cheque, files for bankruptcy, or applies for protection against its creditors (in the latter case subject to the exclusion of this possibility by the relevant legislation).
7.5. In the event of termination of the Agreement by Maraca at the expense of the Customer in accordance with Article 7.2or 7.3, Maraca shall be entitled to compensation equal to the compensation provided for in Article 8, the foregoing in each case without prejudice to Maraca’s right to demand higher compensation, subject to proof of higher damage actually suffered.
8. Termination of the Agreement
Notwithstanding Article 7.2, theCustomer may only terminate the Agreement upon payment to Maraca of all of the following:
(a) a termination fee of 50% of the agreed total price of the agreed but not executed Services,
(b) the total price (100%) of the Services already executed, and
(c) all costs already incurred by Maraca in the framework of the Agreement and/or all (cancellation) costs that Maraca itself is obliged to pay as a result of the cancellation by the Customer.
9.1. Maraca is liable only for its own wilful misconduct and for the wilful misconduct of its employees or subcontractors. Maraca shall not be liable for simple negligence.
9.2. The Customer is obliged, under penalty of nullity, to notify Maraca by registered letter of any fault or shortcoming in the Services within 15 calendar days of establishing the alleged fault or shortcoming, except if the alleged fault or shortcoming is urgent, in which case the Customer is obliged, under penalty of nullity, to inform Maraca in writing immediately after establishing the alleged fault or shortcoming. The Customer is in any case obliged, under penalty of nullity, to institute legal proceedings against Maraca for alleged faults or shortcomings in respect of the Services within 6 months of their being established.
9.3. Any complaint by the Customer shall not suspend his obligations (including his obligation to pay), nor shall it give the Customer the right to refuse receipt or payment of a Service, to terminate the Agreement without any compensation or to claim damages. The foregoing is without prejudice to the Customer's right of access to court in accordance with Article 14.
9.4. Maraca is not liable for faults on the part of the Customer or one of the Customer’s appointees, nor for any damage caused by the Customer's violation of his obligations under the Agreement.
9.5. Maraca’s liability is limited to direct damage and in accordance with mandatory liability legislation. Maraca is in no way liable for indirect or consequential damage, for example but not limited to damage to material or software of third parties, loss of data, loss of time, loss of customers, loss of profit, loss of income, increase in general costs, disruption of business, claims by third parties (for example, but not limited to customers of the Customer), late VAT or tax returns, reputational damage, loss of future savings, personnel costs, loss of (business) opportunities, loss of goodwill or any other form of economic damage.
9.6. Maraca is not liable for damage to, loss of or theft of the supplies entrusted to it by the Customer.
9.7. In the event that Maraca would be liable but the damage is aggravated by the Customer's actions or omissions, only the Customer shall be liable for the additional damage.
9.8. In any case, Maraca’s liability towards the Customer is always limited to (i) the amount paid by Maraca’s insurer or (ii), if Maraca’s insurer should fail to pay, the price for theServices provided that gave rise to the damage.
9.9. The liability of Maraca shall be reduced by any compensation received by the Customer from third parties for the damage concerned.
9.10. Only the Customer shall be liable to third parties for damages resulting from the performance of theServices.
9.11. Maraca can under no circumstances be jointly and severally obliged to pay compensation with or to third parties.
9.12. The Customer must fully indemnify Maraca in principal, interest and (court or attorney’s) costs for all damages suffered by Maraca due to a breach of theCustomer's obligations, e.g. due to incorrect or incomplete information or due to a breach of applicable regulations.
9.13. The Customer must fully indemnify Maraca and hold Maraca harmless against all claims from third parties and authorities, e.g. on account of damages, fines or charges from the authorities, on account of performance of the Agreement and on account of breach of the Customer's obligations, e.g. due to incorrect or incomplete information or due to breach of applicable regulations.
9.14. Nothing in this Article 9 shall exclude or limit Maraca's liability for physical injury or death.
10. Force majeure
10.1. Maraca is not liable for non-fulfilment, late fulfilment or improper fulfilment of (one of) its obligations that is the result of Force Majeure.
10.2. In the event of Force Majeure, the Customer is not entitled to any compensation from Maraca for any reason whatsoever.
10.3. If a case of Force Majeure results in an interruption in the performance of the Services, the performance period will be suspended by operation of law for the duration of the interruption, increased by the time necessary to allow performance of the Services to restart, without Maraca being any compensation to the Customer due.
10.4. In the event of Force Majeure, Maraca and the Customer will immediately enter into negotiations regarding the consequences thereof.
10.5. Force majeure does not entitle the Customer to suspend payment of Maraca’s invoices.
10.6. In the event that a situation of Force Majeure lasts longer than 6 months, Parties will be entitled to terminate the Contract. In such case, Maraca shall be entitled to compensation equal to the compensation provided for in Article 8(b) and 8(c).
11. Processing of personal data
11.1. Maraca is responsible for the processing of personal data of the Customer in the context of the Agreement. Maraca takes all appropriate technical and organisational measures to ensure that the processing of personal data of the Customer is in accordance with the applicable data protection legislation, including the GDPR.
11.3. If and insofar as Maraca qualifies with regard to the Customer as a processor of personal data, whereby it processes personal data of certain data subject on instruction and for the benefit of the Customer, Maraca and the Customer will conclude a processing agreement within the meaning of article 28 of the GDPR.
11.4. In any case and to the extent that the Customer is responsible for the processing of personal data under the Agreement, the Customer will comply with applicable data protection legislation, including the GDPR.
12. Intellectual Property Rights
12.1. All Intellectual Property Rights to or related to Services and/or creations that Maraca has developed or that are created in any way in the context of performance of the Agreement, including but not limited to drawings, designs, plans, software(components), tools, applications, studies, prototypes, concepts, components, documentation and all materials, installations or equipment are and shall remain at all times the exclusive property of Maraca.
12.2. Any Intellectual Property Right created pursuant to the execution of the Agreement shall exclusively be vested in Maraca and such rights are here with automatically and by operation of law transferred to Maraca, to the fullest extent possible.
12.3. No provision in the Agreement can be construed as a full or partial transfer of these Intellectual Property Rights to the Customer.
12.4. The Customer is not permitted to change, remove or make unrecognisable any indication of Maraca’s Intellectual Property Rights.
12.5. The Customer is not allowed to use or register any trademark, design or domain name of Maraca or a corresponding symbol in any country, anywhere in the world.
13. General provisions
13.1. The nullity, invalidity or unenforceability of one or more provisions of these General Terms and Conditions or the Agreement does not in any way result in the nullity, invalidity and/or unenforceability of the other provisions of these General Terms and Conditions or the Agreement. In the event that any of the provisions exceeds any statutory limitation, the relevant provision or part thereof shall not be void, but the parties shall be deemed to have agreed that this provision or the conflicting part thereof shall be reduced or limited to the maximum permitted under the applicable law, and any provision or portion thereof which exceeds these limits will be amended or replaced by operation of law with a valid clause as closely as possible to the intent of the parties.
13.2. The Customer is not entitled to transfer all or part of its rights and obligations under the Agreement to third parties without the written permission of Maraca. Maraca, on the other hand, has the right to transfer its rights and/or obligations under the Agreement to third parties, provided that this does not affect warranty coverage to the Customer. Where appropriate, this transfer will be enforceable against the Customer upon simple written notification by Maraca, after which the latter will be released from its contractual obligations. In the event of the aforementioned transfer, the Agreement will continue to exist in full between the Customer and the third party.
13.3. The Customer guarantees that the provisions of the Agreement will be respected by its appointees and/or agents.
13.4. In no event shall any act or omission of Maraca or any provision of the Agreement be deemed a waiver of any right to the detriment of Maraca.
14. Applicable law and competent courts
14.1. These General Terms and Conditions and the Agreement are governed by and shall be construed and interpreted exclusively in accordance with the laws of Belgium, and no effect shall be given to any other choice of law or any conflict of law rules or provisions (Belgian, foreign or international) that could cause the laws of any jurisdiction other than Belgium to be applicable.
14.2. All disputes arising out of or in connection with this Agreement shall be subject to the exclusive jurisdiction of the courts Antwerp, division Antwerp (Belgium), notwithstanding the Maraca’s right to bring proceedings against the Customer in any competent court based on the Customer's registered offices.