Article 1. Scope of the general terms and conditions
1.1. These general terms and conditions apply to all offers and agreements with Talking Heads, regardless of conflicting provisions indicated in documents issued by the client. By placing an order, the client accepts the general terms and conditions of Taking Heads.
Article 2. Tenders and quotations – order confirmation
2.1. All tenders and offers issued by Talking Heads are without obligation until their acceptance by the client. The agreement comes into force when the client has signed for approval and returned the offer, unchanged, to Talking Heads within eight days. Every order confirmed or placed by the client is legally binding. The agreement supersedes all previously concluded and/or verbal agreements. The order shall be processed as soon as the advance payment has been received.
Article 3. Cancellation of orders
3.1. Cancellation of an order by the client is possible as long as Talking Heads has not yet begun its work and subject to payment of damage compensation of 30% of the agreed price, with a minimum of 500 EUR.
Article 4. Delivery
4.1. The date of delivery is provided only as an indication, and is not binding for Talking Heads. A delay in delivery does not entitle the client to damage compensation or to a discount, or to termination of the agreement.
4.2. If the parties have explicitly agreed a binding delivery time, this deadline will be extended if the client fails to provide information (in good time), documents, originals or images, or fails to accept (in good time) the amended proofs, or if the client places additional orders.
Article 5. Risks
5.1. All goods belonging to the client and located at Talking Heads shall be stored at the client's risk.
Article 6. Payment conditions
6.1. For each order, the client is required to make an advance payment of 30% of the invoiced amount, with a minimum of 500 EUR, unless otherwise agreed upon in the quotation. The remaining amount due must be paid within 30 days after the service has been delivered.
6.2. All invoices are payable on their due date via transfer to the bank account of Talking Heads. Each payment shall be applied to the oldest overdue invoice, and allocated initially to any interest and costs owed. Any discounts granted shall be void if the general terms and conditions are not respected.
6.3. If the client fails to pay the amount due within eight (8) days after receipt of a demand for payment from Talking Heads, the client shall owe Talking Heads default interest of 12% per annum, as well as a fixed damage compensation amounting to 10% of the invoiced amount, with a minimum of 125 EUR, from the date of the demand for payment until full payment. Moreover, Talking Heads reserves the right to suspend all its commitments toward the client until the latter has paid all overdue invoices. Any payment delay on the client’s behalf shall render all amounts due payable immediately.
Article 7. Complaints – contested invoices
7.1. Any contestation must be sent to Talking Heads by registered letter with supporting arguments within a period of eight (8) days. For complaints or disputes concerning the delivered services, the period begins on the day following delivery. In the case of contested invoices, the term begins on the invoice date. In the absence of timely dispute of the services/invoices, the services/invoices shall be considered definitively accepted and payment shall be owed.
Article 8. Liability – General
8.1. Talking Heads commits to providing all the services due with care. All services provided by Talking Heads are an obligation of means. Talking Heads cannot be held liable for errors in the execution as a result of inadequate or incorrect input from the client.
8.2. Talking Heads cannot be held liable for any error (including major errors) on its part or on the part of its appointees in the case of fraud. Regardless of the cause, form or object of the claim for which liability is invoked, Talking Heads cannot be held liable for any consequential loss, including a loss of expected profits, reduced turnover, an increase in operating costs and a loss of clientele which the client or third parties may suffer as a result of any error or negligence on the part of Talking Heads or one of its appointees.
8.3. In all cases, the liability of Talking Heads with regard to the services provided to the client shall be limited to reimbursement to the client of the price paid, or performing of the services a second time, at the discretion of Talking Heads. The total liability of Talking Heads shall never exceed the price paid to Talking Heads by the client for the provision of the services that were the cause of the damage claim. 8.4. With regard to the services provided by third-party suppliers, Talking Heads accepts no liability above or other than the liability that the third-party suppliers are prepared to accept for their products or services.
Article 9. Liability with regard to software
9.1. Without prejudice to article 8, the following stipulations apply to social media networks: the flawless functioning of a social network configuration can never be fully guaranteed, due to both external factors (technical failures, suspension of the platform, power outages or failures, lightning strikes etc.) and to factors specific to the computer configuration (faults, network disruptions, undetected bugs in system and application software etc.). Therefore any unexpected loss of (even all) applications, programmes and/or data can occur. The client commits to installing suitable mechanisms for the protection, safekeeping and recovery of data.
Article 10. Intellectual property rights
10.1. Intellectual property rights refers to all intellectual, industrial and other ownership rights (regardless of whether they have been registered), including, but not limited to, copyrights, related rights, brands, trademarks, logos, drawings, models or requests for the registration of drawings or models, patents, patent applications, domain names, know-how, as well as rights relating to databases, computer software and semiconductors.
10.2. Both parties acknowledge that the concept of a social media presence (i.e. the development of the screens of a social media profile, the pages, applications, advertisements, channels or groups) shall not, in principle, be protected by intellectual property rights. Hence, the client may find similar structure on other social media sites developed by Talking Heads.
10.3. The intellectual property rights linked to the visual design of the social media sites developed by Talking Heads shall be transferred to the client. This transfer applies to the full scope of the project, and includes all methods and forms of use, for the full duration of the right in question, throughout the world. If the website contains photos and/or drawings that were not provided by the client, but which Talking Heads acquired from a website that offers photos and images online – possibly against payment – the user license that the client receives for these photos and images shall be dependent on the conditions specified on the website of this online library. Generally this user license shall be non-exclusive. Talking Heads does not provide any guarantee concerning these photos and images.
10.4. The intellectual property rights linked to the software required to complete the work (i.e. the software required for the management of a social media presence) are the exclusive property of Talking Heads or any third party with which Talking Heads has signed an agreement to this effect. Subject to payment of an annual license fee, which shall be determined in the quotation issued by Talking Heads, and subject to the suspensive condition of full payment of this fee, the client shall receive a non-exclusive, non-transferrable user license for this software. The client is prohibited from awarding sub-licenses to third parties, or from making the software available to or sharing it with third parties, using it for the benefit of third parties or marketing it in any way.
10.5. The client shall respect the intellectual property rights of Talking Heads at all times and shall make reasonable efforts to protect these rights. Moreover, the client shall inform Talking Heads immediately of any infringement by third parties of the Talking Heads intellectual property rights of which it has knowledge.
10.6 Unless otherwise expressly agreed otherwise by the parties, Talking Heads shall manage the passwords in the social media environment. This shall not violate the privacy of the client and can therefore not result in any damage claims on the client’s behalf.
Article 11. Termination of the agreement
11.1. If the client is guilty of a serious breach of contract that it does not rectify within eight (8) days after receipt of a notice of default sent by registered post, Talking Heads has the right to (i) suspend the agreement until the client meets its obligations, or (ii) terminate the agreement with immediate effect. The non-payment of one or more invoices by their due date will always be considered a serious breach of contract.
11.2. In the case of termination of the agreement, the client shall pay for all services delivered, as well as the costs that Talking Heads has incurred or shall incur as a result of this termination, plus fixed damage compensation of 30% of the amount that Talking Heads still could have invoiced to the client if the agreement had been fully executed. Any advance payment made shall remain with Talking Heads. In addition, Talking Heads retains the right to claim higher damage compensation if it proves that the damages actually suffered are greater than the fixed damages as established above.
11.3. However, each party accepts that it shall grant the other party a reasonable period in which to rectify any shortcomings, and that amicable settlement shall be sought in the first instance.
Article12. Obligation of confidentiality
12.1. The parties agree to keep confidential the commercial and technical information, and the trade secrets that they have learned from the other party, even after the termination of the agreement, and to use such information only for the execution of the agreement.
Article 13. Processing of personal information
13.1. Insofar as the client processes personal data on the Talking Heads server, the latter assumes the function of processor. The client acts in the capacity as the body responsible for processing personal data as defined by the Belgian Processing of Personal Information Act [Wet Verwerking Persoongevevens]. The client undertakes to comply fully with the obligations imposed upon the body responsible for the processing, as set out in this act.
13.2. Within the framework of the provision of services to the client, Talking Heads shall process the personal data of the contact persons indicated by the client. The contact information of these persons shall be processed for the purpose of ‘client administration', i.e. to contact the client regarding the services. The contact persons have the right to access and correct their data.
Article 14. Reference portfolio
14.1. The client agrees that the service developed for the client by Talking Heads be included in the Talking Heads reference portfolio.
Article 15. Force majeure
15.1. Situations of force majeure such as strikes, civil unrest, administrative measures and other unforeseen events over which Talking Heads has no control, exempt Talking Heads from its obligations for the duration of the hindrance and the scope of said situations, without the right to any reduction in the price paid or damage compensation for the client.
Article 16. Invalidity
16.1. If any clause in these general terms and conditions is invalid, the remaining clauses shall remain fully in force and Talking Heads and the client shall replace the invalid clause by a different clause that reflects the aim and the intent of the invalid clause as closely as possible.
Article 17. Applicable law - competent court
17.1. Belgian law is applicable to the agreements of Talking Heads. Any dispute with respect to the conclusion, validity, execution and/or termination of this agreement shall be settled by the competent court of Ghent.