General Terms and Conditions: these general terms and conditions.
BrightAnalytics: BrightAnalytics BV, Bruggesteenweg 311 box 2.2, 8830 Hooglede, registered in the Kruispuntbank van Ondernemingen with the number 0555.899.773.
Demo: demo version of the Platform that the (potential) Client can use for a period of fourteen (14) calendar days before entering into an Agreement with BrightAnalytics.
User: any user of the Platform.
Intellectual Property Rights: all (registered and unregistered) trade names, trademarks, domain names, copyrights, logos, design rights, database rights, trade secrets, patents, inventions, works, models, designs, processes/methods, technologies, systems, know-how rights, source and source codes, as well as all designs, software, documents and all other materials developed and/or used in preparation or execution of the Platform and the Assignment or arising therefrom, and all other industrial and intellectual property rights.
Assignment: description of the services and goods, including but not limited to the set-up of and access to the Platform and a Software as a Service (“SaaS”) subscription and any additional modules, that the Client wishes to receive and the corresponding price, as described in the quotation received by the Client.
Client: the party placing the Assignment with BrightAnalytics.
Agreement: (i) the Assignment placed by the Client and accepted by BrightAnalytics, and (ii) these General Terms and Conditions.
Parties: joint designation of the Client and BrightAnalytics, each individually a Party.
Platform: the digital platform of BrightAnalytics made available on BrightAnalytics’ servers.
2.1 BrightAnalytics reserves the right to unilaterally amend these General Terms and Conditions at any time.
2.2 These General Terms and Conditions are applicable to all Agreements and the use of the Demo.
2.3 These general Terms and Conditions have been notified in advance to the Client, who has accepted them. The applicability of the Client’s General Terms and Conditions is expressly rejected by BrightAnalytics; regardless of when they were communicated.
2.4 If there is a discrepancy or ambiguity between the content of the Assignment and the General Terms and Conditions, the content of the Assignment shall prevail.
2.5 If one of the provisions of the General Conditions or the Agreement should be null and void or invalid, only the part of this article that is null and void or invalid shall be deleted. The remaining part of this article and the other articles shall remain in force. The void or invalid part shall be replaced by a provision with similar economic effect, unless the invalidity of such a provision negates any benefit to the execution of the Assignment.
After registering for this, every potential Client will be given the opportunity to use the Demo free of charge during a period of fourteen (14) calendar days from registration. After this period the Demo will no longer be usable.
4.1 All offers concerning an Assignment are non-binding without BrightAnalytics’ acceptance.
4.2 An Assignment is accepted and the Agreement enters into force (i) after a written confirmation by BrightAnalytics of the Assignment signed by the Client, or (ii) at the moment BrightAnalytics starts executing the Assignment.
4.3 The Agreement contains the complete agreement between the Parties and replaces all previous communication in this regard and/or an oral or written proposal prior to the conclusion of the Agreement.
4.4 The Assignment may only be changed with the written approval of the Parties.
5.1 The Client shall ensure that all information, documents, instructions and codes requested and required by BrightAnalytics for the correct and timely execution of the Assignment shall be made available to BrightAnalytics in time and in the form and manner desired by BrightAnalytics.
5.2 BrightAnalytics is not liable for any delay and/or additional costs caused by incomplete and/or late provision of data, documents, instructions and/or codes by the Client.
5.3 The Client must cooperate in good faith and, among other things, provide personnel with an appropriate level of knowledge and experience in order to adequately answer BrightAnalytics’ questions and to properly manage the project.
5.4 The Client shall ensure that BrightAnalytics is promptly informed of facts and circumstances that may be relevant to the proper and timely execution of the Assignment or that could jeopardize such execution.
5.5 The Client is solely responsible for the accuracy, completeness and reliability of the data, documents, instructions and codes made available to BrightAnalytics, even if these come from third parties.
5.6 The additional costs due to breaches by the Client of this Article 5, including costs due to delays in the execution of the Assignment, will be borne entirely by the Client.
6.1 All activities to be performed by BrightAnalytics shall be carried out to the best of its knowledge and ability, in accordance with the requirements of good craftsmanship and using up-to-date technology and know-how at its disposal. BrightAnalytics will only be committed to the means, not to the result.
6.2 BrightAnalytics reserves the right to work with its appointees or with independent consultants during the execution of the Assignment, hereinafter jointly referred to as the “Employees”.
6.3 BrightAnalytics shall determine the manner in which and by which Employees the Assignment granted will be carried out, but shall take into account as much as possible the reasonable requirements made known by the Client.
6.4 BrightAnalytics may, in consultation with the Client, perform additional work and charge this to the Client.
6.5 If the Client wishes to involve third parties in the execution of the Assignment, he will only do so after consultation with and with the prior written consent of BrightAnalytics. BrightAnalytics reserves the right in that case to revise the planning and price.
7.1 All delivery times quoted by BrightAnalytics are purely indicative and not binding. Delivery terms are always stated in working days.
7.2 BrightAnalytics is not liable for failure to meet a delivery deadline, nor for any (direct or indirect) costs, damage or loss resulting therefrom. Delays in delivery and any resulting additional costs do not allow the Client to terminate the Assignment, refuse delivery or suspend payment of the underlying invoices.
8.1 In the event that the Client wishes to make a change to the Assignment during the execution of the Agreement, this must be reported in writing to BrightAnalytics. BrightAnalytics reserves the right in this case to adjust the execution planning and the price.
8.2 Upon receiving the Client’s requests or new needs, BrightAnalytics will analyze them and, if it appears, in BrightAnalytics’ understanding, that they require a modification of the Assignment, BrightAnalytics will within a reasonable time make an offer of modified Assignment with indication of the changes, including but not limited to the execution schedule and prices.
8.3 The Client shall be deemed to have approved this amended Assignment after the expiry of three (3) working days after the quotation has been submitted, with the result that the Assignment – as amended – shall continue to be performed under the amended conditions, including in terms of planning and prices.
8.4 BrightAnalytics also remains free, after analyzing the requested changes, to indicate that they cannot be performed; the Parties will then continue to execute the Assignment as originally agreed, and if necessary will negotiate to have the requested changes executed within the framework of another Assignment.
9.1 The price to be paid by the Client to BrightAnalytics is stated in the Assignment and any additional quotations in the event of changes to the Assignment as set out in Article 8. All prices stated are exclusive of VAT and any other taxes applicable at the time of payment, which the Client will have to pay.
9.2 BrightAnalytics reserves the right to charge additional costs per User in addition to the number of Users initially provided for in the Assignment.
9.3 BrightAnalytics reserves the right to increase the price during the term of the Assignment, after the first year and after each year following the effective date of the Assignment. Such increase shall not exceed the result of the following formula: P=P0 (0.8 S/S0 +0.2) P= new cost P0= current cost S0= reference hourly rate as determined by Agoria on the effective date of the Assignment S= reference hourly rate as determined by Agoria on each annual anniversary of the effective date.
9.4 BrightAnalytics reserves the right to charge a travel allowance of EUR 0.40/km.
9.5 Unless otherwise agreed, the Client explicitly agrees to electronic invoicing by BrightAnalytics.
9.6 Invoices are payable in cash to the account number indicated on the invoice. Payment of an invoice cannot be suspended due to a delay in the execution of the Assignment, an allegedly faulty or incomplete delivery, nor for any other reason.
9.7 If the invoice has not been paid on the due date, the amount due shall be increased, ipso jure and without notice of default, by (i) interest of 1% per month from the due date until full payment of the invoice amount, and (ii) liquidated damages of 10% of the invoice amount, with a minimum of EUR 125, without prejudice to BrightAnalytics’ right to claim the damage actually suffered.
9.8 If one invoice remains unpaid on the due date, all outstanding and future amounts will become immediately due and payable. In this case BrightAnalytics reserves the right to revoke any previously granted discounts and to suspend its services and work until all arrears have been cleared, this without prior notice to the Client.
9.9 Client shall reimburse BrightAnalytics for all costs incurred in collecting unpaid and due invoices, including but not limited to legal and attorney fees.
9.10 Royalties, licenses, DNS registration fees and all purchases made in connection with the Assignment, with an individual sales value of less than EUR 250 will be additionally invoiced to the Client.
9.11 Any protest to any invoice must be notified to BrightAnalytics by registered mail within eight (8) business days from the invoice date. In the absence of timely protest, the invoice, the services rendered and the goods to which the invoice relates are deemed to have been accepted in full.
10.1 Unless otherwise agreed, the Agreement is for an indefinite period. Parties may terminate the Agreement at any time by registered letter, subject to observance of a notice period of two (2) months, which commences three (3) working days after the registered letter has been sent.
10.2 In the event that the Client terminates the Agreement of indefinite duration in accordance with Clause 10.1 before the Assignment has been fully executed, BrightAnalytics shall be entitled to: i) Full payment by the Client of the agreed price for the set-up of the Platform, if not yet fully paid at that time; and ii) Payment by the Client of two (2) months of the fee for the SaaS subscription and any additional modules, regardless of whether or not the Client continues to use the Platform during the notice period as above.
10.3 If the Assignment states a specific duration, then the Agreement is for a fixed term, and not subject to early termination. Articles 10.1 and 10.2 do not apply in this case.
10.4 Should the Client nevertheless terminate the Fixed Term Agreement prematurely, the full agreed contractual amount as specified in the Assignment for the remaining term remains due and payable immediately, regardless of BrightAnalytics’ ability to claim additional damages.
10.5 In case of premature termination of the Agreement, BrightAnalytics shall not be obliged to pay any damages or compensation to the Client and it shall never be obliged to refund any amounts already paid by the Client.
10.6 Either Party may unilaterally terminate the Agreement with immediate effect by registered letter without prior notice and with reservation of the right to compensation, if the other Party is insolvent, has been declared bankrupt or if a receiver, administrator or liquidator has been appointed, or the other Party ceases its activities for any other reason.
10.7 BrightAnalytics may also unilaterally terminate the Agreement with immediate effect by registered letter without prior notice and with reservation of the right to compensation, if the Client does not comply with its payment obligations included in Article 9.
10.8 Termination of the Agreement will not relieve the Client of its obligation to pay the amounts already due under the Agreement.
10.9 Except for the situations provided in Articles 10.6 and 10.7, upon termination of the Agreement BrightAnalytics shall for a period of three (3) months after termination cooperate in transferring the work already performed to third parties. Insofar as this transfer involves additional costs for BrightAnalytics, the Client will be obliged to reimburse them.
10.10 Upon termination of the Assignment each Party shall immediately hand over to the other Party all goods, items, documents and electronic media in its possession that are the property of the other Party.
11.1 During the execution of the Assignment, the Client and BrightAnalytics shall communicate with each other validly by means of e-mail.
11.2 Parties explicitly acknowledge that electronic carriers and e-mails shall have the same evidential value as signed documents.
11.3 The Parties acknowledge that the use of electronic carriers may involve risks including, but not limited to, distortion, delay or viruses. The parties expressly agree not to hold each other liable for any damage that may result from the use of electronic carriers and e-mails. In any event, the parties undertake to make every reasonable effort to prevent such damage.
12.1 The Client acknowledges that it may only use the Platform for internal business purposes and expressly declares that the use and that of its employees or appointees will be in accordance with all applicable legislation.
12.2 The Client will take all necessary steps to prevent viruses or other harmful software from damaging the Platform.
12.3 The Client shall not: (i) use or copy the Platform other than for the Client’s business purposes; (ii) use the Platform, including the server and storage capacity provided, to commit infringements or cause damage or nuisance to BrightAnalytics or third parties; (iii) decompile, reverse engineer or attempt to derive, reconstruct, identify or discover any source code, underlying ideas, underlying user interface techniques or algorithms, in any way, or disclose the Platform, except to the extent expressly permitted by applicable law; (iv) encumber the Platform with a pledge or security interest; (v) take any action that might cause the source code of the Platform to enter the public domain; (vi) use the Platform in a manner not expressly permitted under the Agreement or in a manner that is unlawful or harmful, or seeks to achieve an unlawful or harmful purpose or activity; and (vii) circumvent technical or other protective measures as provided by the Platform.
12.4 The Client shall ensure at all times that no actionable or infringing data, files, software, metatags, hyperlinks, deeplinks to be used in conjunction with the Platform or any other services provided by BrightAnalytics or similar references or information are present on equipment made available by BrightAnalytics in the performance of the Assignment.
12.5 The use by the Client of illegal software or software whose licensing terms are not respected, by the Client in conjunction with the Platform is prohibited. Spamming is prohibited on all equipment and systems provided by BrightAnalytics. The Client assures to immediately comply with any request of BrightAnalytics as well as any reasonable request of third parties to remove, make inaccessible or modify the content. Client waives any right to claim any damages associated with such removal. Thus, BrightAnalytics will not allow, among other things, pornographic material, nor will it allow sites from which items are offered that are contrary to public order, morality or the regulations governing market practices, or which constitute any other unlawful practice. Nor may activities be carried out on the servers which infringe protected works or the protection of privacy or which are punishable by law.
12.6 The Client undertakes to notify BrightAnalytics without delay of any actual, threatened or suspected improper use of the Platform.
13.1 In no event shall BrightAnalytics be liable for any indirect or consequential damages, including but not limited to commercial or financial losses (including but not limited to loss of profits or revenue), loss of data, loss of or damage to equipment, loss of goodwill, damage to reputation nor shall BrightAnalytics be liable for losses resulting from legal action taken by third parties against the Client, defects caused (in)directly by an act of the Client, damage caused by the improper use of the services, products and software resulting from the Assignment or shortcomings in products and services of third parties.
13.2 Without prejudice to the application of Article 13.1, BrightAnalytics’ total liability shall not exceed the total price of the Assignment. In any case, BrightAnalytics will never be liable for an amount higher than the amount paid out under the policy of its liability insurance underwritten by it.
13.3 Client is solely responsible for the proper use of the Platform, taking into account BrightAnalytics’ specifications, documentation and instructions and applicable legal provisions in this regard.
13.4 The Client shall indemnify BrightAnalytics for and against any claims that might arise from the existence, performance, non-performance of the Agreement and that might be caused by its own negligence or fault of one of its Users.
13.5 The Client alone is responsible for all transactions carried out on the Platform, such as payments, notifications, etc. The Client undertakes to indemnify BrightAnalytics without reservation for any claim that might be made by third parties in relation to these transactions. BrightAnalytics does not enter into the relationship between the Client and its customers, and remains at all times a third party.
13.6 BrightAnalytics shall not be liable for any failure to timely renew a license agreement with a third party supplier, payment of royalties and the like, nor for any consequences arising therefrom, even if the initial license agreement was delivered by BrightAnalytics’ actions in connection with the Assignment. Client will receive a copy of the license terms at the time of order and must oversee the renewal itself.
14.1 BrightAnalytics offers a limited warranty against hidden defects, in particular defects that were not visible or could not reasonably be identified when accessing the Platform and/or delivering the modules under the Assignment and that occur within a period of eight (8) weeks thereafter.
14.2 BrightAnalytics warrants to the best of its ability that the Platform: (i) will operate uninterrupted, except for interruptions due to circumstances beyond its control or prior reported and foreseen interruptions, (ii) will be virus free, except in the event of a cyber-attack or any other unlawful access to the Platform by a third party.
14.3 A claim based on the warranty provided will only be investigated by BrightAnalytics if the Client notifies its request to do so by registered letter. Such notice will only be valid if: i) the Client has notified BrightAnalytics immediately upon discovery of the alleged defect; ii) the Client sufficiently describes the alleged defect(s); iii) the Client demonstrates that it could not reasonably have discovered the defect earlier; the Client will provide additional information and documentation at BrightAnalytics’ request during the investigation of the complaint; and iv) the notice has been sent in accordance with the provisions of Article 25.
14.4 In the absence of a timely and valid claim under the warranty, the Client shall be deemed to have irrevocably accepted the Assignment.
14.5 If there is actually found to be a hidden defect, BrightAnalytics will make reasonable efforts to remedy the defects to the extent that the functionality is part of the Assignment. This is the only form of remedy to which BrightAnalytics is committed.
14.6 For sold program codes and software of third parties, only the guarantee conditions of the manufacturer/publisher apply. BrightAnalytics is not responsible for these and does not formulate any guarantee with respect to services or materials of third parties.
15.1 Without prejudice to Section 13 of these Terms and Conditions, Client shall indemnify and hold BrightAnalytics harmless from and against any liability, damage, fine, claim, judgment, proceeding, and costs and expenses of any kind, including all reasonable legal fees, pursuant to the existence, performance, non-performance and termination of the Agreement and which: (i) are caused by the Client’s and/or any of its Users’ own negligence, error, legal or criminal violation; and (ii) are brought by a third party, including but not limited to any third party claim that has its basis in: a) false, inaccurate or outdated information provided to BrightAnalytics by the Client; b) the processing of personal data in the context of the Agreement, provided by the Client to BrightAnalytics and which BrightAnalytics therefore lawfully obtained; or c) the registration of a domain name.
16.1 BrightAnalytics or Client are in a situation of force majeure if one of them finds itself in a temporary or definitive impossibility to fulfill the commitments entered into under the Agreement due to a foreign cause not attributable to the same Party and which was not foreseeable at the time the Agreement was entered into.
16.2 Examples of force majeure (non-exhaustive) include strikes, fires, wars, military operations, governmental actions or omissions, natural disasters, national and local emergencies, epidemics, business interruptions, energy interruptions, failure of a (telecommunications) network or connection or communication systems used or the unavailability of the Platform at any time, network attacks, network failures, non or late delivery by suppliers or other third parties used and the reduced or non-functionality of networks, systems and equipment of third parties.
16.3 Force majeure on the part of the Client shall in any case not include a shortage of personnel, strikes, or financial problems of the Client. Force majeure can never be invoked with respect to payment obligations.
16.4 The Party invoking force majeure shall notify the other Party as soon as possible of the situation of force majeure. In the event of temporary force majeure, the Party claiming force majeure shall be entitled to suspend and/or extend the period of performance of the Contract for as long as the situation of force majeure lasts. The Party invoking force majeure shall notify its contracting party as soon as possible (i) if the force majeure situation ends and the obligations under the Agreement can be resumed, or (ii) if the temporary force majeure became permanent, resulting in the termination of the Agreement. There may be a final force majeure if the situation of force majeure lasts longer than two (2) months. Both in the event of temporary force majeure during the suspended period, and in the event of termination due to permanent force majeure, the Party claiming force majeure shall not be liable for any compensation.
17.1 The Parties shall consider all non-public information received from the other Party in connection with the execution of the Agreement to be confidential; such information may only be used within the framework and for the needs of the Agreement and such confidential information and materials may only be disclosed to persons who need to have access to them within the framework of the Agreement or pursuant to a legal obligation of disclosure. Both Parties shall make every effort to respect this confidentiality and to ensure that this confidentiality obligation is respected by employees and third parties.
17.2 All confidential information and materials made available to either Party within the scope of the Agreement shall be and remain the unique and exclusive property of the respective Party that released them, and shall be returned to the owner or, to the extent agreed between the Parties, destroyed upon termination of the Agreement, or as soon as they are no longer necessary.
17.3 Neither Party shall reproduce or distribute the Confidential Information and Materials, directly or indirectly, in whole or in part, orally or in writing, without the written and prior approval of the other Party, unless it is necessary to do so in order to execute the Agreement.
17.4 This provision survives termination of the Agreement, whatever the cause, and must be complied with by the Parties.
18.1 For the processing of personal data BrightAnalytics will comply with the relevant applicable legislation. BrightAnalytics will treat personal data confidentially and inform all persons who necessarily have access to these data of their confidential nature.
18.2 BrightAnalytics considers personal data provided to it by the Client in the context of the Assignment to have been lawfully obtained and managed by the Client. The Client guarantees BrightAnalytics against all possible claims by third parties and persons involved in the matter.
18.3 BrightAnalytics reserves the right, but is not obligated, to remove any data that is deemed to be in violation of (i) the terms of the Agreement or otherwise inappropriate, (ii) any third party rights, or (iii) any applicable laws or regulations.
19.1 All Intellectual Property Rights are held exclusively by BrightAnalytics or its suppliers. The Agreement does not purport to grant any transfer or license of the Intellectual Property Rights.
19.2 The Client is granted a personal non-exclusive and non-transferable right of use, limited to the use for its own internal purposes of the Platform as specified in the Assignment and during the term of the Agreement, and this on the condition of compliance with the payment obligations as provided in Article 9. The Client undertakes to notify BrightAnalytics without delay of any actual, threatened or suspected infringement of its Intellectual Property Rights of which the Client has knowledge.
19.3 If explicitly agreed in the Agreement, the Client will be granted a non-exclusive and non-transferable right of use, limited to the use for its own internal purposes of well-defined products for the agreed Assignment, and this on the condition of complying with the payment obligations as provided in Article 9.
19.4 Client shall not, without prior written consent of BrightAnalytics, publish, reproduce or make available to any third party in any way, in whole or in part, the products and results of the Assignment.
19.5 Client gives BrightAnalytics explicit permission to refer to the name, logo, trade name or trademarks of the Client, as well as the work performed under the Agreement, both for internal purposes and in the context of commercial purposes such as promotions, advertising, …
20.1 BrightAnalytics is entitled to (i) transfer its rights arising from and performance of the Agreement (in whole or in part) or (ii) subcontract any part of it to third party subcontractors during the performance of the Assignment as it deems necessary or desirable, without prior written consent of the Client.
20.2 Where BrightAnalytics uses subcontractors, all communications between the Client and the subcontractors will be through BrightAnalytics, unless otherwise agreed.
20.3 BrightAnalytics shall in all circumstances remain responsible to the Client, under the terms of the Agreement, for all work performed by BrightAnalytics’ subcontractors, unless the subcontractor was expressly selected by the Client, albeit after consultation or advice from BrightAnalytics, in which case BrightAnalytics’ liability to the Client for the work entrusted to the subcontractor shall be entirely excluded. In the latter case, the Client will have to address the subcontractor directly.
20.4 The Client is not permitted to transfer the Agreement or any part thereof to a third party without BrightAnalytics’ prior written consent, regardless of the form of the transfer. In any event, the Client will remain jointly and severally liable to BrightAnalytics for any obligation under or breach of the Agreement.
The Agreement does not make BrightAnalytics an agent or representative of Client, who has no authority or power with respect to the former and its personnel, and vice versa. The parties shall operate independently of each other and no bond of subordination shall be present. BrightAnalytics does not intervene in the relationship between the Client and its customers. It remains at all times a third party.
22.1 It is expressly forbidden for the Client to perform acts of non-solicitation, directly or indirectly, with respect to any employee, consultant or any other person working for BrightAnalytics during the term of the Agreement and for one (1) year after its termination.
22.2 If the Client commits a breach of the provisions of this Article, it shall be obliged to pay BrightAnalytics damages determined on a flat-rate basis at an amount corresponding to one year’s gross salary cost of the person recruited, without prejudice to BrightAnalytics’ right to claim additional damages if and to the extent that it demonstrates that its actual damages exceed the amount of the flat-rate damages.
23.1 The Client must designate at least one person who will communicate with BrightAnalytics under the Agreement, can and may make decisions and who will have insight into the data, reports and logs associated with the hosting activity. It is the Client’s responsibility to ensure the availability of this person/people and to keep the contact information up to date at all times. If the contact person is replaced for any reason, this should be communicated to BrightAnalytics.
23.2 All data generated by the systems hosted or housed for the Client in execution of the Agreement (reports, log-files, files, etc.) belong to the Client and are considered confidential information in the sense of Article 17. Costs for making these data available and accessing them are at the expense of the Client. The Client is solely responsible for the accuracy, quality, integrity, legality, reliability, suitability and copyright of all data.
The non-exercise of any right of BrightAnalytics shall in no way be considered a waiver of that right.
25.1 All notifications to BrightAnalytics referred to in this Agreement shall be made in writing to BrightAnalytics BV, for the attention of the Financial Manager, Bruggesteenweg 311 box 2.2, 8830 Hooglede, by registered letter with acknowledgement of receipt or by courier service. Such letter shall be deemed to have been received three (3) working days after the date of dispatch of the letter.
25.2 An e-mail message to the following e-mail address: finance@brightanalytics.eu is permitted provided that an explicit reading confirmation has been requested and received. Such e-mail message shall be deemed received and effective on the date of the reading confirmation.
The provisions of the Agreement which by their nature and scope are intended to survive the term of the Agreement, including but not limited to Article 17 and Article 19 shall survive termination of the Agreement.
27.1 The Parties shall always endeavour to resolve any dispute amicably first. All disputes between the Parties concerning the validity, the interpretation or the execution of the Agreement are governed by and must be settled in accordance with Belgian law.
27.2 The courts of the judicial district of Bruges will have exclusive jurisdiction to hear any disputes between BrightAnalytics and the Client.