Article 1 - General
Unless otherwise expressly agreed in writing, any agreement concluded with Cherry Pulp SPRL, whose registered office is located at Rue des Palais, 44 Bte 17, 1030 Brussels (BE 0515.998.824) (hereinafter "Cherry Pulp") is subject to the conditions set out below. The customer acknowledges having read the general terms and conditions and having accepted them before placing his order by any means whatsoever. These general terms and conditions govern all services that the customer may request from Cherry Pulp. The general terms and conditions of the customer will only be enforceable on the sole condition that Cherry Pulp has accepted them expressly and in writing. Cherry Pulp reserves the right to change its general terms and conditions without notice to the customer and without the customer being able to claim any compensation. It is therefore up to the customer of verify if modiﬁcations has intervened.
Article 2 - Definition of the mission
The services shall be carried out in accordance with what is described in the specifications, the offer (proposal) and/or the quotation.
Article 3 - Offers
All our offers are without engagement and for a period of 3 months. All prices quoted are exclusive of VAT and all other taxes. All our offers can always be modiﬁed or retracted. All orders are irrevocably binding on the customer and cannot be cancelled without our written agreement. The contract will only be concluded after acceptance of the order by Cherry Pulp.
Article 4 - Deadlines
In general, the agreed delivery times are only valid if Cherry Pulp is in possession of all the elements that enable it to carry out the assignment. Delivery periods shall only be binding if we have expressly agreed and accepted them in writing. Delivery periods are given for information only: exceeding them shall under no circumstances be recognized against us, nor shall they give rise to any termination of the contract or to the claiming of penalties for delay by the customer.
Article 5 - Intellectual Property Rights and Assignment of Rights
Custom-made products or internet platforms, as well as all modiﬁcations contributed by Cherry Pulp to existing products, for the customer remain the exclusive property of Cherry Pulp until all obligations of the customer towards Cherry Pulp have been fully met. Only the specific services to the customer's project, carried out by Cherry Pulp, may be the subject of a transfer of ownership when requested in writing by the customer and accepted by Cherry Pulp. Plugins or frameworks, created by Cherry Pulp or by third parties, are never subject to transfer of ownership:
Plugins or scripts created by other editors remain the exclusive property of the latter. In all cases, only a license of use is granted to the customer who certifies is aware of their limits.
Cherry Pulp does not guarantee that the codes used in the projects carried out for the customer, have not already been used by it under other contracts and, in any case, Cherry Pulp retains the right to use the same codes in other projects, even those carried out at proﬁt by third parties.
Unless otherwise agreed, Cherry Pulp may advertise the customer's project as a reference in its portfolio and sign its creations made for the customer.
Article 6 - Responsability
Cherry Pulp undertakes to perform its services, the provisions of the contract and applicable law. Unless otherwise agreed in writing, the customer is obliged to accept the quality tolerances imposed by the market, technological limitations and professional practice.
Cherry Pulp's assignment is an obligation of means. Therefore, Cherry Pulp cannot be held liable solely on the basis of the results obtained.
Cherry Pulp undertakes to exercise its obligation to provide advice in its field of technical competence, to the exclusion of any other advice, in particular of a legal, ﬁscale or accounting nature. Cherry Pulp makes every effort to be original in the creation of its designs and projects and therefore cannot be held liable in the event of a third party claiming to be a victim of plagiarism.
If the development of the project requires the use of tools, plugins, scripts or webservices created by other editors, Cherry Pulp cannot be held responsible for the stopping or modiﬁcation in the operation of these tools, plugins, scripts or webservices. For example, if the modiﬁcation of a webservice results in the impossibility to continue a project, Cherry Pulp shall not be held responsible.
If the use of tools, plugins, scripts or webservices created by other publishers is imposed by the customer, Cherry Pulp shall not be liable for any claim made by these publishers against the customer.
Cherry Pulp reserves the right to interrupt certain equipment used for the execution of its mission (in particular servers) for a minimum period of time aﬁn to carry out maintenance aimed at optimizing the equipment, for example a server or a device necessary for a better quality of service.
Cherry Pulp's liability vis-à-vis the customer is limited to the direct damage caused to the customer and to a maximum amount corresponding to the price of the order in which the event/claim occurred.
Cherry Pulp shall in no event be liable for loss of data, production, loss of profit, loss of contracts or any other indirect or consequential damages suffered by the customer.
Article 7 - Receipt and complaint
Acceptance of the project is understood to be the express or tacit acknowledgement by the client of the conformity of the object of the order concerned with the contract. Unless otherwise agreed with the customer, the following principles shall apply:
- By express agreement, the putting into production of a project is equivalent to an irrevocable acceptance of it and is carried out under the sole responsibility of the customer.
- Once the project is online, the customer has ten working days to send his complaints in writing or via our support platform. These must be the subject of a precise description of the non-compliance regarding the contract.
- In the absence of observation by the customer within ten working days following the start of production, acceptance shall be deemed to have been accepted.
- In case of a complaint made by the customer upon receipt, Cherry Pulp undertakes to correct such complaints within one (1) month.
- Possible defects of a part of the object of the order, even if established, do not entitle the customer to reject the entire project.
- Acquired acceptance may not be called into question for any reason.
- If the achievement of a project is significantly delayed due to the fault of the client, the project, in its latest version made available to the client, will be considered to have been accepted on the day on which this latest version is presented to the client. A significant delay is defined as a delay of one (1) month during which the lack of collaboration of the customer prevents Cherry Pulp from continuing its mission.
Article 8 - Training
The sale and delivery of products and services does not entail any obligation for Cherry Pulp to train the customer in the use of the product supplied. However, unless otherwise stated, any training of the customer or its personnel is offered on the basis of a quotation.
Article 9 - Maintenance
In case of interventions not subject to a specific quote, except specific maintenance contract, all services will be performed on a time and materials basis, according to a rate that can be communicated at the first request. The time required for the services invoiced by Cherry Pulp will be sufficiently established by the production of a "time sheet" indicating the time worked.
Article 10 - Hosting
By hosting, we mean everything related to the hosting of a project, including its domain name(s), certiﬁcats SSL, mailboxes... Unless otherwise specified, hosting contracts have a duration of one (1) year. At the end of this duration, these contracts are tacitly renewed for a new year, unless the end of the contract has been put to the agreement at least one (1) month before the expiration of the latter.
The accommodation offered by Cherry Pulp is rented from hosting providers and re-invoiced to the customer. Cherry Pulp cannot be held responsible for failures of these servers, which are the responsibility of these hosting providers.
If the customer entrust Cherry Pulp with the hosting, the customer can request access to the server and database at any time. Cherry Pulp gives itself a period of fifteen (15) days to provide access. From the moment the customer has access to the servers, whether those of Cherry Pulp or his own, Cherry Pulp is no longer responsible for their maintenance. However, such maintenance remains possible on the basis of the hourly rate in force.
Article 11 - Payment
A deposit equivalent to 30% of the price, plus VAT or any other taxes, is invoiced at the time of signing the quote. Invoicing is then carried out monthly by Cherry Pulp, in proportion to the progress of the project. Upon delivery of a project, a balance invoice will be sent to the client. Invoices are payable within fifteen (15) days of their dispatch, unless expressly agreed otherwise, at the head office of Cherry Pulp, or by the financial organization in charge, mentioned on the invoice. The amount of each invoice that has not been paid in full within these fifteen (15) days shall be increased by 10% as a penalty clause by operation of law and without the need for an interpellation or summons, without prejudice to the possible application to the debtor of article 1244 of the French Civil Code. In addition, default interest at the rate of 8% per annum shall be payable from the due date without the need for formal notice. This clause does not affect the immediate due date of the debt. Under no circumstances may payments be suspended or be subject to any compensation whatsoever without the prior written consent of Cherry Pulp. Any partial payment will be charged first on the non-preferred part of the debt, then on the interest on arrears and enﬁn on the principal sums which are the oldest due.
Article 12 - Cancellation without fault
Each party has the right to cancel the order at any time subject to giving 8 working days' notice notiﬁying to the other part by registered letter with acknowledgement of receipt.
In the event of termination by the customer, through no fault of Cherry Pulp, the sums paid by the customer will remain the property of Cherry Pulp. In addition, all services already performed by Cherry Pulp shall be indemnified by the customer, as well as an indemnity of 20% of the total amount appearing in the order shall be due by the customer.
Article 13 - Suspension of work
The customer may only unilaterally terminate the agreement by compensating Cherry Pulp in accordance with Article 1794 of the Civil Code, without prejudice to any damages. If it appears to Cherry Pulp that the customer's creditworthiness deteriorates, in particular in the event of legal enforcement measures being taken against the customer and/or in the event of events that call into question the proper execution of the commitments made or make them impossible, Cherry Pulp reserves the right, even if the assignment has already been fully or partially executed, to suspend the order in whole or in part and to demand the necessary guarantees. In the event of refusal by the customer, Cherry Pulp reserves the right to cancel the order in whole or in part.
Cancellation or suspension of the agreement at the expense of the customer is without prejudice to Cherry Pulp's right to claim compensation for the damage suffered and any compensation or penalties arising from the agreement and the law.
Cherry Pulp is not liable for the consequences of suspension or termination of the sales contract notiﬁed in accordance with the above terms, in particular regarding the customer's contracting partners. In the event of termination of the contract for fault, all sums due for any reason whatsoever shall become immediately payable.
Article 14 - Force majeure
Cherry Pulp shall not be held responsible for the total or partial non-performance of its obligations hereunder, if such non-performance results from an event of force majeure or is due to causes beyond its control such as, in particular, riot, fire, flood, strike, frost, particular traffic difficulties, supply difficulties, prohibition of operation issued by a public authority, power failure, telecommunications blockage. In the event of force majeure, Cherry Pulp is entitled to suspend the execution of the assignment in the first instance.
If the force majeure event lasts longer than two (2) months, Cherry Pulp shall be entitled to terminate the contract by registered letter with acknowledgement of receipt without the other party being entitled to claim damages.
Article 15 - Sensitive data - Provisions relating to the RGPD
15.1 Description of the Processing Operations covered by the Subcontract
Cherry Pulp undertakes to process personal data only on the basis of written instructions from the customer. Personal data means any information relating to a natural person identiﬁed or identiﬁable.; is deemed to be a "natural person identiﬁable" a natural person who can be identiﬁed, directly or indirectly, in particular by reference to an identiﬁant, such as a name, a identiﬁcation number, location data, an online identiﬁant, or to one or more specific elements related to his psychological, economic, cultural or social identity. Personal data are generally a name, first name, contact information, date of birth, email address, gender, age, IP address... The persons concerned by the processing operations are: customers, users, employees. Cherry Pulp and its staff are authorized to process on behalf of the customer the personal data necessary to provide the following services: direct marketing, statistics or hosting. Throughout the duration of the assignment, personal data are subject to the following processing operations: collection, recording, organization, structuring, storage, adaptation or modiﬁcation, retrieval, consultation, use, communication by transmission, dissemination or any other form of making available, matching or linking, limiting, erasure or destruction of data.
15.2 Rights and obligations of the customer
It is the customer's responsibility to provide the information mentioned in articles 13 and 14 of the RGPD to Cherry Pulp. The customer shall make available to Cherry Pulp the personal data that is the subject of the assignment. The customer determines the means and purposes of processing. The customer furthermore guarantees the lawfulness of the processing, in particular the transfer of the personal data to Cherry Pulp. The customer shall provide Cherry Pulp with written instructions for the processing. The customer guarantees that his instructions comply with the privacy legislation, i.e. with all rules on the processing of personal data applicable in Belgium, in particular the Law of 8 December 1992 on the protection of privacy with respect to the processing of personal data and, as from 25 May 20. The customer shall immediately notify Cherry Pulp of any modiﬁcation of the originally planned processing operations. The customer is fully responsible for the processing of personal data by its staff members. The customer shall keep a register of the processing activities carried out under its responsibility, in accordance with the procedures provided for in Article 30(1) of the RGDR. The customer retains ownership of the personal data, information and material made available to Cherry Pulp in the performance of the assignment.
15.3 Rights and obligations of Cherry Pulp
Cherry Pulp only processes personal data that is strictly necessary for the execution of the assignment. Furthermore, it undertakes to process personal data only for the defined purposes. Cherry Pulp will not process personal data for any other purposes other than those determined by the client. Cherry Pulp undertakes to process personal data in accordance with the written instructions of the customer and the provisions of this agreement. If Cherry Pulp considers that an instruction constitutes a violation of privacy legislation, it will immediately inform the customer. This obligation to inform the customer is only an obligation of means and Cherry Pulp cannot be held liable in any way.In addition, if Cherry Pulp is required to transfer data to a third country or international organisation under the law of the Union or the law of the Member State to which it is subject, it must inform the customer, unless the law concerned prohibits such information for important reasons of public interest. Cherry Pulp guarantees the conﬁdentiality of the personal data made available to it. The same obligation of conﬁdentiality applies to all members of its staff. Cherry Pulp may not carry out any processing operations outside the European Economic Area without the prior written and explicit consent of the customer. By processing operation is meant in particular the storage and transmission of data to a third country outside the European Economic Area.In addition, Cherry Pulp will have to ensure that the third country in question offers an adequate level of protection. If it does not, it will have to put in place appropriate safeguards by contract or have obtained the explicit consent of the persons concerned. Cherry Pulp processes personal data for as long as necessary for the performance of the mission. As soon as the service has been fully executed, Cherry Pulp shall, within a reasonable period of time, put a stop to any processing of personal data, other than that necessary for the deletion or return of the data to the customer, unless otherwise expressly agreed between the parties. As far as possible, Cherry Pulp shall assist the customer in fulfilling its obligation to comply with the requests for exercise of the rights of the data subjects: right of access, of rectiﬁcation, of deletion, and of opposition, right to limitation of processing, right to data portability, right not to be subject to automated individual decision (including proﬁlage).Where the persons concerned exercise their rights directly with Cherry Pulp, the latter shall transfer the applications to the customer upon receipt. The customer will be responsible for the further processing of the request, unless otherwise agreed between the parties. Cherry Pulp assists the customer in carrying out data protection impact assessments and in carrying out prior consultation with the supervisory authority. In addition, Cherry Pulp assists the client in responding to the requests of the supervisory authority. At this ﬁn, the parties shall provide for a remuneration mechanism for Cherry Pulp. Cherry Pulp is authorised to make one or more copies and/or back-ups of the personal data if this is necessary for the execution of the assignment. The personal data concerned shall enjoy the same protection as the original personal data. The staff of Cherry Pulp is subject to an obligation of conﬁdentiality regarding the processing of personal data. Cherry Pulp undertakes to inform its personnel about privacy legislation and the provisions of the subcontracting agreement. Cherry Pulp shall inform the customer of the name and contact details of its Data Protection Officer (DPO), if it is required to appoint one in accordance with Article 37 of the GRPD.
15.4 Subsequent subcontracting
Cherry Pulp may delegate all or part of its processing obligations under this Agreement to another subcontractor only with the prior and specific written authorization of the Customer. The customer may only refuse Cherry Pulp's request if it has legitimate reasons. In the event of further subcontracting, Cherry Pulp remains the customer's point of contact. Cherry Pulp may use the services of a subcontractor located outside the European Economic Area only with the prior written and specific written consent of the customer. In this case Cherry Pulp shall choose a sub-contractor that guarantees an adequate level of protection of personal data. Failing this, it must put in place appropriate guarantees by contract or have obtained the explicit consent of the persons concerned. Cherry Pulp must ensure that the sub-processor provides the same guarantees regarding the implementation of appropriate technical and organisational measures, so that the processing meets the requirements of the GRPD, in particular Article 32. The obligations laid down in Article 5 of this subcontract shall apply in full to the sub-processor. Cherry Pulp shall remain fully liable to the customer for the performance by the sub-contractor of its obligations. Cherry Pulp will inform the customer of the sub-contractors, if any, selected to perform the processing operations.
Cherry Pulp is bound by an obligation of conﬁdentiality concerning the personal data processed within the framework of the subcontracting agreement. This obligation of conﬁdentiality also applies to all information that the customer provides to Cherry Pulp within the framework of the contract.
. This obligation of conﬁdentiality applies equally to the staff of Cherry Pulp as well as to possible subcontractors and their own staff. This obligation of conﬁdentiality takes effect as soon as the main contract is negotiated, continues throughout the duration of the main contract and continues even after ﬁn of the main contract. This obligation of conﬁdentiality does not apply when Cherry Pulp is obliged to communicate the personal data to the Control Authority, by virtue of a legal provision or a court decision, when the information is already known to the public, or when the communication of the personal data has been authorized by the customer.
15.6 Safety precautions
The customer and Cherry Pulp undertake to implement technical and organizational measures (hereinafter referred to as "security measures") to protect personal data against destruction, whether accidental or unlawful, loss, fraud, dissemination or unauthorized access, in particular when the processing involves the transmission of data over a network, or against any other form of unlawful processing or use. These security measures shall ensure a level of security appropriate to the risk represented by the processing.In determining the adequate security measures, the Parties shall take into account the state of the art, the costs of implementation and the nature, scope, context and purposes of the processing as well as the risks to the rights and freedoms of data subjects. These security measures shall be designed in particular to prevent any unauthorised collection or further processing of personal data. Cherry Pulp is obliged to inform the customer of the security measures it implements. If, due to developments in the state of the art, important modiﬁcations must be made to the technologies used to secure the data, Cherry Pulp shall inform the customer of this and make an assessment of the costs of implementation.If the customer refuses to carry out these measures, Cherry Pulp shall not be liable for any violation of the data due to an omission on the part of the customer. The customer will be fully responsible for the payment of any administrative fines and/or compensation resulting therefrom. The customer and Cherry Pulp shall make every reasonable effort to ensure that their processing systems and services meet the requirements of conﬁdentiality, of constant integrity, availability and resilience, taking into account the state of the art and the costs of implementation.
15.7 Notiﬁcation of a violation of personal data
Data breach means any breach of security leading, accidentally or unlawfully, to the destruction, loss, alteration, unauthorised disclosure or access to personal data transmitted, stored or otherwise processed. Cherry Pulp notiﬁe will inform the customer of any violation of personal data as soon as possible, and no later than 24 hours after becoming aware of it. This notiﬁcation is accompanied by any relevant documentation aﬁn to enable the customer, if necessary notiﬁer to enable the customer to report this violation to the data protection authority and/or the persons concerned.Cherry Pulp shall provide the Customer with the following information: the nature of the personal data breach, the categories and approximate number of data subjects, the categories and approximate number of personal data subjects, the likely consequences of the personal data breach, and the steps taken to remedy the personal data breach or mitigate any adverse consequences. At the request of the customer, Cherry Pulp notiﬁe the violation of personal data in the name and on behalf of the customer to the supervisory authority as soon as possible and, if possible, no later than 72 hours after ascertaining the violation, unless the violation in question is not likely to result in a risk to the rights and freedoms of natural persons. At the request of the customer, Cherry Pulp notiﬁe the violation of personal data in the name and on behalf of the customer to the persons concerned as soon as possible, when such violation is likely to create a high risk for the rights and freedoms of natural persons. The decision whether or not to inform the Data Protection Authority and/or the data subjects of a violation of personal data lies with the customer.
15.8 Intellectual Property
The intellectual property rights to the information and material made available to Cherry Pulp remain the property of the customer. These intellectual property rights include, among others, copyright and the sui generis right to databases. The customer grants Cherry Pulp a license for use limited to that which is strictly necessary for carrying out the processing operations within the framework of the subcontracting agreement. Cherry Pulp is not allowed to modify, reproduce, communicate to the public the protected elements, unless prior written consent of the customer.
15.9 End of the contract
Cherry Pulp shall return all personal data to the customer at ﬁn of this subcontract. It shall also provide the Customer with all information and documentation necessary for the further processing of this data. After returning the personal data to the customer, Cherry Pulp shall immediately make ﬁn available for any processing of the personal data and destroy all existing copies in its information systems. The costs associated with the return of personal data and the destruction of copies shall be borne by the customer.
Article 16 - Non-headhunting
The customer shall refrain, without the prior written consent of Cherry Pulp, from directly or indirectly making offers of employment to employees of Cherry Pulp who are bound by an employment contract with Cherry Pulp and/or to freelance employees of Cherry Pulp and who are assigned to the execution of the assignment, or from employing them under any status whatsoever. This prohibition is maintained for a period of twelve months following the ﬁn of the contract or the start of production of the project.
Article 17 - Conﬁdentiality
The customer and Cherry Pulp undertake to keep secret from each other the content of the documents and information they provide to each other conﬁent on the occasion of the assignment.
Article 18 - Jurisdiction - Applicable law
This contract is subject to Belgian law. The parties agree that any disagreement or dispute relating to this agreement or arising from its interpretation or application shall be submitted to mediation, without prejudice to any protective measures. To this end, the parties hereto undertake to participate in at least one mediation meeting by delegating to it a person with decision-making powers. The accredited mediator shall be chosen by the parties from among the mediators accredited by the FPS Justice. In the absence of an amicable agreement, any dispute relating to the execution or interpretation of the present agreement shall fall within the exclusive jurisdiction of the Commercial Court of Brussels.