1. Scope of application
These general terms and conditions (hereinafter “General Terms and Conditions”) apply to any contract (“Contract”) concluded between CUSTOM CODING S.à r.l, with registered office at L-6850 Manternach, 3, Um Groesteen, (hereinafter the “Provider”), and its clients (hereinafter the “Client” or “Clients”), (together hereinafter the “Parties”).
In the absence of any specific written agreement between the Provider and the Client, these General Terms and Conditions applie regardless of any clause which may appear on the Client’s documents.
The General Terms and Conditions shall take precedence over any other document produced by the Provider (catalogue, prospectus etc) which are not contractually binding.
After assessing the Client’s needs, the Provider makes an offer (“Offer”) containing the description of the Product, Services and/or Hosting Services to be provided by the Provider, describing the functional and technical characteristics of the Products or services offered, including the price («Special Conditions»), and thus delimiting the Provider’s commitments.
A biding contract (“Contract”) shall arise upon receipt of the Offer duly signed by the Client, or upon receipt of any other mean, without prejudice to the right of the Provider to give evidence of the acceptation of the Offer through any other means admissible by law. The Client is therefore bound by the Special Conditions and by these General Terms and Conditions upon signature of the Contract.
3. Products and services
The Provider offers a wide range of digital services.
The Provider offers the conception and creation of IT tailor-maid products (“Products” or “Product”) such as internet presentations, web apps, web design, email marketing, etc.
He also performs IT Services such as the registration and the administration of domains, support of servers, search engine optimization etc. He also provides hosting services such as web or mail hosting (“Hosting Services”), or SaaS services (Software as a service) (“SaaS services”).
When the Provider develops Products, he provides personalized advice to the Client, with regard to his specific needs.
When the Provider is responsible to develop a Product, meeting the specific needs and expectations of the Client, this mission involves the design, creation, production, and execution of the Product.
Unless otherwise stipulated in the Contract, the maintenance of the Product, its adaptation, improvement and / or updating, installation, hosting, training of the Client’s staff in the use of the Product are not covered by the Contract, as well as in general any service not expressly referred to in the Special Conditions.
3.2. Domain registration
The Provider ensures that – as far as possible and legally permissible – the domain is registered with the relevant registry. Since the Provider has no influence on the domain allocation, no guarantee can be given that the domains applied for the Client will actually be allocated and / or that the domain will be free of third-party rights, neither on the validity period of the domain name. If the Provider faces claims from third parties due to the unappropriated or unlawful use of a domain by the Client, the Client shall indemnify the Provider for the full damage, including the costs of legal prosecution or defence. If necessary, the Client will defend itself, and bear his own legal fees. The Client further shall waive all claims and recourse if the Provider is obliged to delete the domain or transfer it to a third party due to a judgment or arbitration award or any other decision or agreement.
The Client commits to immediately inform the Provider if a third-party requests him to cease any use of the domain. In this case, unless otherwise agreed between the Provider and the Client, the Provider is entitled, on behalf of the Client to renounce to the do main. If the Client asks the Provider to keep the domain active, the Provider is allowed to ask for the deposit of a lump sum to cover potential legal fees that the Provider may have to bear as a result of the Client’s decision.
3.3 Hosting Services
Hosting Services can be provided for a price and period of time agreed between the Parties, and specified in the Special Conditions
3.4 SaaS services
SaaS services can be provided for a price and period of time agreed between the Parties, and specified in the Special Conditions.
The Provider will make any modifications of the SaaS Services on a continuous basis.
He will ensure that the Client is informed of any modification relating to the SaaS Services.
Any bugs (i.e error, failure, flaw or fault on a software that causes it to produce an incorrect result or to behave ways unintended by the Provider) or support requests can be submitted to the Provider. Support related to bugs and modifications are provided for free. Any other support requests, not related to bugs, are subject to additional fees on a time-spent basis.
4. Information and advice
The Client acknowledges being fully informed by the Provider on the characteristics, performance, conditions of use, inherent risks, constraints, incompatibilities and limitations of the Product with regard to the Client’s particular situation.
In order to enable the Provider to perform its advisory mission, it is the Client’s responsibility to cooperate with the Provider by providing it with any information useful for the exercise of its advisory mission, and to enable it to check its digital environment, including in particular the technical characteristics of existing infrastructures and software. It is also up to the Client to allow the Provider to collaborate with any third-party providers, in order to allow the Provider to identify any prerequisites and technical impossibilities.
The Client is advised that the management of a website gives rise to legal obligations with civil and criminal penalties. The Client is responsible for compliance with these obligations. If the Provider suffers damage because the Client infringes any legal obligation related to the management of a Product, he is entitled to assert claims for damages.
Regarding the development of Products or the performance of Services, the Price may either be a flat-rate or be invoiced according to a hourly fee rate.
The Price covers the services described in the Special Conditions. Additional services that are not are included in the Offer are to be paid separately. This applies in particular to additional expenses as a result of 1) the submission of data in non-digitalized form 2) the necessary and reasonable use of third-party services 3) the expense of license management 4) commissioned testing, research services and legal reviews and 5) services provided outside of business hours.
The Provider reserves the right to request the payment of installments to be made as the project progresses.
It is expressly agreed that the rights granted to the Client under Article 8 are suspended until full payment of the Price by the Client. Invoices issued by the Provider are payable on the date of receipt by the Client. Any delay in payment will automatically and without formal notice result in the application of late payment interests corresponding to five (5) times the legal rate.
Any modification of the Contract may be freely discussed, and will be the subject of a new offer.
6. Delivery times
Delivery times are provided for in the Special Conditions. These are indicative deadlines, depending on the good cooperation of the Parties. The Provider undertakes to deploy all necessary means to meet the delivery deadline. The Provider shall not, in any way, be held responsible in the event of late delivery attributable to a lack of collaboration on the part of the Client.
The Provider shall not be held liable in the case of late delivery due to 1) changes in the Client’s requirements, 2) inadequate requirements in the application environment (hardware or software deficits), insofar as these were not known by the Provider, 3) Problems with third-party products (e.g. software from other IT manufacturers).
The Provider shall not be held liable in the case where he cannot delivery on time the services due to labor disputes arising in his company, a force majeure event or other unavoidable circumstances.
7. Conformity and Acceptance
The Provider offers to design and develop original products, meeting the expectations and needs of the Client. This mission is carried out in close collaboration with the Client and any third-party providers, so as to define the best way to meet the Client’s expectations.
The Product is offered to the Client in a “test phase”, for a period of time which depend on the nature of the Product, but will not exceed 20 working days. During the “test
phase”, the Client is responsible for performing all the tests he deems useful to enable him to control the conformity of the Product. The Client is required to carry out a careful
examination of the performances and functionalities of the Product, and to report any apparent defect, and any lack of conformity. At the end of this “test phase”, the Client gives his final agreement on the Product. The approval constitutes acceptance of the conformity of the Product, and marks the beginning of the warranty period. The use of the Product by the Client constitutes tacit acceptance of the conformity of the Product.
Any refusal of acceptance must be duly motivated and be subject of a written and precise description of the defects observed. In the event of a dispute between the Parties
regarding the conformity of the Product, it is accepted that the Product is deemed to be considered as “conform” when it offers the function assigned to it in the Special Conditions,
taking into consideration the usual function offered by an equivalent solution, meeting the same description, and the standards of quality, reliability, safety and adaptability available in the state of the art on the date of its supply.
After the final agreement on the Product, the Provider provides the Client with the source code of the Product. If the Client has not subscribed to the hosting and / or installation services offered by the Provider, the latter delivers to the Client an installation manual.
The Client is then responsible for the installation and administration of the server(s).
Subject to having been fully informed by the Client and / or any third-party service provider about the technical characteristics of the Client’s infrastructure and software, the provider undertakes to provide a Product that is compatible with the Client’s equipment, and guarantees its integration into the Client’s hardware and software environment. Incorrect integration into the Client’s system (hardware and software) is deemed to be a lack of conformity of the digital content itself if the Provider is responsible for the failing integration. Conversely, when the Product is required to be injected into existing infrastructures and / or to communicate with existing software, the Provider cannot be held liable in the event of incorrect information from the third-party service provider regarding technical descriptions, operating methods, data flow, or any other piece of information related to the communication between the different systems, to a change of paradigm during the realization of the Product, whether it is due to the Client or a third-party service provider, or to any other failure by a third-party service provider to fulfill a prerequisite indicated by the Provider. In any of these cases, the Provider reserves the right to additionally invoice any resulting additional workload.
8. Intellectual rights/copyrights
8.1 Products’ composition
The Provider develops original solutions, which are in particular composed of a tailor-made source code («Custom Source Code»), of which the Provider is the author since this Custom Source Code is the result of its research and creation efforts.
The Product is also likely to include existing elements, developed by third parties («Existing Elements»), which may as well come from Open Source libraries as from libraries developed by third parties upon order of the Provider.
Finally, the Product includes libraries developed by the Provider itself (“Provider Elements”) as part of its research and creation work.
8.2 Provider’s rights and guarantees
The Product is created and edited by the Provider, who is therefore the sole author of the Product. The Client’s intervention in the development of the Product is limited to stating needs, formulating preferences, and in no case giving instructions to the Provider.
The Provider declares that the Product does not infringe the rights of any third party, including employees and collaborators. Where applicable, the Provider expressly guarantees that it has obtained all the authorizations necessary to use any elements incorporated in the Product.
Provided that the Client complies with the practical rules applicable to the Existing Elements of his Product, the Provider guarantees the Client against all claims that third parties could assert as a result of the use of the Product by the Clients, as soon as the claim is based directly and exclusively on an element of the Product, to the exclusion of any claim relating to an element of the Product modified by the Client or by a third party.
The Provider keeps any practical rules applicable to its Product available to the Client.
Depending on the conditions of use of the Existing Elements, they may only be transferred to the Client for a limited period of time. The restricted transmission may lead to the fact that third-party licensed material becomes no longer available or at significantly changed conditions over which the Provider has no influence. In this case, the Provider will do its best efforts to use similar material. He reserves the right to consequently invoice any additional work.
As the owner of the Provider Elements constituting its know-how, the Provider is free to use and exploit for the purposes of new projects its know-how, the working methods applied for the needs of the Contract as well as any Provider Element. The Provider is also entitled to defend itself against any infringement of its rights on the Provider Elements.
The Provider authorizes the Client to make reasonable modifications to the Product. He expressly waives his right to invoke his moral rights to oppose such changes, unless he demonstrates that the change in question is prejudicial to his honor or reputation.
8.3 Rights of the Client
8.3.1 Use of the Product
The Client is authorized to develop, adapt and transform the Product himself or to entrust these services to a third party of his choice, within the limits of the rights he holds over the various components of the Product (see below under 9.3.2).
8.3.2 Client’s rights over codes
– Rights on the Custom Source Code: by using the services of the Provider, the Client purchases a Custom-developed Product, characterized in particular by a unique, original and tailored-maid source code that the Provider transfers to the Client. The Client therefore becomes the owner of the Custom Source Code. He is therefore free to use it, store it, communicate it to the public, transfer it, copy it, modify it, improve it and transform it.
– Rights on Existing Elements: insofar as the Provider only holds rights of use over these elements, he undertakes to transmit these rights to the Client. The Client remains bound by any practical rules attached to the Existing Elements.
– Rights on the Provider Elements: the Provider remains the owner of its intellectual rights on the Provider Elements, and grants the Client a simple right to use these elements, insofar as they are part of the Product and they are necessary for the exercise of the rights over the Product, namely rights of use, storage, adaptation, development, improvement or transformation. The Client is prohibited from copying and assigning the Provider Elements without the express consent of the Provider.
8.3.3 Client’s rights to images, photos, design, and other graphic elements of the Product
(«Graphic Elements») and rights relating to websites
The Product is made up of Graphic Elements which may be either royalty-free or covered by licenses. With regard to the latter, the Provider undertakes to transmit its rights to the Client. The Client remains bound by any practical rules attached to these Graphic Elements.
The Client owns the URL of the website developed by the Provider.
8.3.4 Rights over the SaaS Services
For the performance of Saas Services, the Provider grants the Client a revocable and non-exclusive license to use the Hosted Services.
8.4 Reciprocal commitments of the Parties
Each party undertakes to respect the existing intellectual rights of the other party. In particular, the Provider is not authorized to use the trademark rights, images, made available to it by the Client for the purpose of personalizing the Product. With regards to these elements made available to him by the Client, the Client ensures that these elements are free of third-parties’ rights, and holds the Provider free and harmless from any liability that may result from the use of any sign provided to the Provider.
9. Guarantees and Liabilities
The Provider undertakes to provide a service in accordance with the rules of the art, in order to deliver a Product in good working condition and meeting the level of performance expected by the Client, taking into account the overall technical environment in which the Product is called to function.
The provider guarantees the Client that the Product has been tested using professional virus detection systems. It is then up to the Client to take appropriate measures to prevent from the risk of viruses or any other form of attack.
The Provider guarantees that the normal use of the Product will not result in direct or indirect loss of data, nor any alteration thereof.
The Provider guarantees the Client that the Product is free of codes or technical devices allowing the Provider to deactivate it remotely or to interrupt its operation unilaterally.
The Provider is not responsible for any disturbances or unavailability related to the hosting of the Product and / or the provision of Internet access. The Provider is not responsible for changes made after the delivery of the Product. The Provider reserves the right to invoice the time spent diagnosing a problem caused by the modification of the Product by the Client or by a third party.
The Provider can only be held liable for direct damage linked to the design and development of the Product. To the maximum extent permitted by applicable law, in no event shall the Provider be liable for any special, incidental, indirect or consequential damages whatsoever (including without limitation, damages for loss of business profits, business interruption, loss of business information, costs for data recovery, or any other damage)
In any case, the Provider’s liability cannot exceed the price of the Contract.
The Provider will undertake all reasonable steps to maintain the availability of the Hosted Services as well as SaaS Services to the Client. This constitutes a best efforts obligation (“obligation de moyens”).
The Provider may, from time to time, suspend access to the Hosted Services or SaaS Services to carry out maintenance and reparations. Scheduled maintenance will be carried out outside of business hours in Luxembourg (8.00am to 6.00pm, Monday to Friday) and the Client will be notified of scheduled maintenance in writing. The Provider will not incur any liability for such periods of suspended access to the Hosted Services or SaaS Services, whether scheduled or not.
For the avoidance of doubt, the Provider will not be responsible for any accessibility or operational problems caused by: a) a Force Majeure Event; b) a failure of the Internet or any public telecommunications network; c) a fault or failure of the Client’s computer systems, network or internet access; d) urgent or scheduled maintenance.
The Client must not conduct performance or security tests on the server or Hosted Services nor ask other persons to conduct such tests. If applicable, the Hosted Services may not, at any point time, be used by more than the number of concurrent users specified in the Special Conditions.
10. Client’s data and back up
The Client is obliged to adequately protect himself against data loss. Since the reinstallation of software, but also changes to the installed software, entails the risk of data loss, the Client is particularly obliged to take any appropriate measure against data loss by means of comprehensive data backups before reinstalling or changing the installed software. The Provider shall not be held responsible for any data loss.
For the performance of Hosting Services as well as Saas Services, the Client grants the Provider a non-exclusive licence to copy, reproduce, store, export, adapt or edit the Client
Data to the extent necessary for the performance of the services according to the contract. The Provider explicitly has the right to sub-licence these rights to its hosting and connectivity providers.
The Provider will back-up the Client Data daily and retain each daily copy for a duration of 30 days. The Provider, at the Client’s request in writing, endeavour to restore the Client
Data from a backup from a date chosen by the client. This constitutes a best efforts obligation (“obligation de moyens”). The Client acknowledges and accepts that restoring the Client Data from a backup overwrites and deletes any Client Data added to the Hosted Services or SaaS Services after the backup was made.
11. Termination of the Contract
Both Parties can terminate the Contract immediately if the other party is in breach of the terms or obligations under the Contract, or the Terms and Conditions, for a period of time exceeding 30 days after written notice of such breach, and such breach is not capable of remedy by way of mutual consent.
The Provider may further terminate this Agreement immediately with written notice to the Client if any fees remain unpaid for 90 days after the due date.
In the event of termination of the Contract and without prejudice to the Client’s right to claim damages, the Provider shall under no circumstances be required to deliver the product under design or development, nor any database, tool of work, process, methodology which are specific to it, and of which it remains the owner.
In the case of Hosting Services or SaaS Services, each of the Parties can terminate the Contract with a three month’s notice.
Termination of this Agreement shall be without prejudice to any rights of either party against the other, which may have accrued up to the date of termination.
In the case of Saas Services, upon the termination of the Contract for any causes whatsoever, the Client shall cease to use the services and shall pay all fees not yet charged for the remainder period of the license. No further fees will be due (save for the ones outstanding at the time of termination).
The Parties agree that confidential information exchanged between them during the contract will remain confidential, with the exception of information already in the public domain, regularly obtained by a third party, made public without fault of one of the parties, or discovered independently.
In order to guarantee the design and development of products meeting quality standards, the Provider has set up a team selected for its advanced skills. The Client agrees not to poach the employees of the Provider.
13. Protection of personal data
The Provider complies with legal obligations regarding the processing of personal data, in particular with the provisions of Regulation (EU) No. 2016/679 of the European Parliament and of the Council of April 27, 2016.
The Provider may need to collect personal data. It guarantees that the personal data collected are adequate, relevant and limited to what is necessary in relation to the purposes for which they are processed.
Personal data are only used to the extent necessary for the performance of the Contract, for communication with the Client, invoicing, or for the performance of pre-contractual measures taken at the Client’s request, otherwise for compliance with legal obligations to which the Provider is subject.
The Provider remains solely responsible for the processing and retention of such data, and guarantees that the data will be stored in such a way as to guarantee appropriate security, including protection against unauthorized or unlawful processing and against loss, destruction or accidental damage, using appropriate technical or organizational measures, and that the data will be kept for a period that does not exceed what is necessary for the purposes for which they are processed. The Provider guarantees that the data is not transferred to a third party.
The Client has the right to request from the controller access to personal data, the rectification or erasure of these, or a limitation of the processing relating to the data subject by sending a simple email to: email@example.com. In the event of inappropriate processing of personal data, the Client has the right to lodge a complaint with the National Commission for Data Protection (CNPD).
Insofar as the contractual partners communicate by electronic mail (e-mail) and thus in text form, they recognize the unlimited effectiveness of the declarations of intent transmitted in this way.
15. Applicable law, place of jurisdiction
Any dispute relating to the validity, interpretation or execution of the Contract, its Special Conditions or its General Conditions, and in general the relations between the Provider and the Client are subject to Luxembourg law and fall under the exclusive jurisdiction of the courts of the Grand Duchy of Luxembourg.
16. General provisions
Conflicting or deviating agreements are not part of the Contract, unless the Provider expressly agrees to their validity in writing.
Should a provision of these General Terms and Conditions be or become void, the other conditions remain effective. The contractual partners will replace the void provision with a valid one that comes closest to the economic intent of the contractual partner.