Hi! Thank you for choosing SITEMANAGER’S Services. These Terms govern your use of SITEMANAGER’s Services and help to define the relationship between you and
SiteManager. By providing you with these Terms, we aim to act transparently and try to, proactively, answer any questions you might have regarding our services,
payment, subscription term, etc. By using our Services, you agree with the latest version of these Terms. We kindly ask you to read these Terms carefully and keep them in
mind every time you use our Services.
I. DEFINITIONS & APPLICABILITY
Add-Ons: additional functionalities which can be added by the Customer to its Membership or active Subscription(s);
Authorised User: every individual the Customer has granted access to the Studio;
Capacity: the whole of the agreed upon characteristics of the Hosting -in particular but not limited to storage space, bandwidth (up-load and download), maximum data traffic, allowed downtime (disruption in the availability of the Customer Site or webpages), etc.;
Consultancy: the tailored advice provided to the Customer or Authorised Users by SiteManager;
Customer: every legal entity relying on the Services of SiteManager, including Authorised Users that have access to the Studio;
Customer Site / Project : the (web)sites designed and built by or for the Customer using the Studio and SiteManager’s proprietary know how, software, code and/or algorithms;
Fee: (i) the Membership fee(s), (ii) Subscription fee(s) and/or (iii) the Consultancy fee(s) payable by the Customer;
Force Majeure: all circumstances which were reasonably unforeseeable at the time the Agreement was concluded, are unavoidable, and create (i) the inability on the part of a party to carry out the Agreement, or (ii) make the implementation of the Agreement harder or more difficult than normally anticipated (financially or otherwise). For example (but not limited to): hardship, natural disasters, war (threats of) terrorism, strikes, lock-out, diseases, pandemics, shortage of personnel, organisational conditions, confiscation, fire, scarcity of (raw) materials, bankruptcy or delays on the part of suppliers or subcontractors;
Hosting: storing a Customer Site on dedicated or cloud infrastructure (whether on one or more shared or dedicated servers) and making it available via the domain name over the internet;
Master Agreement: the proposal, quotation or other agreement and arrangements containing the practical modalities relating to the Services between SiteManager and the Customer;
Master User: the user account which is the owner of the Membership to the Studio of a Customer;
Membership: the right granted by SiteManager to the Customer to access and to make use of the Studio;
Privacy Legislation: the (supra)national privacy legislation, applicable on the processing of personal data by SiteManager or the Customer, related to the execution of the Agreement, such as, but not limited to (i) the Regulation 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC (‘General Data Protection Regulation’ or ‘GDPR’), (ii) Directive 2002/58/EC of the European Parliament and Council of 12 July 2002, concerning the processing of personal data and the protection of privacy in the electronic communications sector (‘E-privacy Directive’), (iii) the Belgian Data Protection Law of 30 July 2018 and any other or future implementation in national legislations;
Services: all services provided by SiteManager in relation to the designing, building, coding and hosting of Customer Sites for the Customer and/or the Authorised Users such as, but not limited to (i) Memberships, (ii) Subscriptions and/or (iii) Consultancy; SiteManager (or we | us): the limited liability company (“naamloze vennootschap”) SiteManager, incorporated and existing under the laws of Belgium, with registered office at BE 9260 Wichelen, Dreefstraat 7A, with company / VAT number BE-0656.994.559;
Studio: the platform developed by SiteManager on which Customer can design, build or code its own Customer Site(s); Subscription: the right granted by SiteManager to the Customer for the Hosting of one Customer Site;
Terms: These Terms of Service;
Website: www.sitemanager.io, as well as any subdomains or other/future websites of SiteManager;
2. Applicability of the Terms
2.2. These Terms are specifically tailored to the use of the Services and are thus best suited to govern the relation between SiteManager and the Customer. Therefore, the Customer agrees these Terms shall always take precedence over its own terms and conditions, which shall not be enforceable against SiteManager (even if the Customer declares them the only valid terms).
II. GENERAL TERMS AND CONDITIONS
3. Conclusion of the Agreement
3.1. SiteManager shall determine the scope of the Services together with the Customer and shall subsequently provide the Customer with a quotation and proposed scope as part of a Master Agreement. The Customer acknowledges that the Master Agreement can be signed electronically.
3.2. The specifications, capabilities, technical features and other details regarding the Services on the Website or in a demo are only to be considered approximations. This information only binds SiteManager insofar as explicitly stated in the Agreement.
4. The Services
4.1. All SiteManager’s obligations related to the Services shall be best efforts obligations. Hence SiteManager shall always provide the Services with appropriate care and in good faith, and serve the Customer to the best of its understanding, skill insight and ability, as can reasonably expected from a professional experienced in services of comparable scope, complexity and size (‘best effort obligation’).
5. Fee and Payment
5.1.1. The Fees payable shall be agreed upon in the Master Agreement between SiteManager and the Customer. In no event shall the Fees confirmed in one Master Agreement be binding for (future) agreements or cooperations.
5.1.2. All Fees are, unless explicitly stated otherwise, excluding VAT or any other levies or taxes.
5.1.3. SiteManager is entitled to increase the Fees agreed in the Master Agreement on a yearly basis, if necessary and justified on the basis of objective factors / parameters. In case of a price increase, SiteManager shall notify the Customer thereof in advance through e-mail or via the Studio.
5.1.4. SiteManager is entitled to index its Fees during the Subscription in line with an increase in its costs, whereby the amount payable shall be calculated on the basis of the formula below:
F = [ 20% * f ] + [ 80% * f * (S/s) ]
F = the new Fee;
f = the initial Fee;
S = the new Agoria wage index;
s = the initial wage index.
5.2. Payment and billing method
5.2.1. Unless otherwise agreed upon, the invoices of SiteManager are payable within a period of fourteen (14) days. The invoice has been settled when the complete amount stated on the invoice has been received by SiteManager.
5.2.2. Invoices that are not disputed by registered letter within eight (8) days after their issuing will be considered to have been fully accepted. The Customer shall pay the undisputed part of the invoice in accordance with these Terms.
5.2.3. By concluding an Agreement and relying on the Services of SiteManager, the Customer agrees to electronic invoicing by SiteManager.
5.3. Late payment
5.3.1. If the Customer fails to pay in full any invoice by the due date for payment, then:
(i) the Customer shall owe an interest on the overdue amount at the rate of one percent (1%) per month. Such interest shall accrue automatically (without prior notice by SiteManager) on a daily basis from the due date until the date of actual payment of the overdue amount. The Customer shall pay the interest together with the overdue amount; and
(ii) the Customer shall pay SiteManager five percent (5%) of the outstanding balance, with a minimum amount of two hundred and fifty euro (250,00 EUR) for costs associated with a.o. the collection of the amounts due and with the adverse consequence on SiteManager cash flow, as liquidated damages. The Customer confirms that this sum represents a genuine pre-estimate of SiteManager its loss.
5.3.2. This paragraph is without prejudice to SiteManager’s right to prove and claim any higher damages.
5.3.3. Late, incomplete or non-payment of one expired invoice will cause all other invoices, for which a particular instalment term has been agreed on, to become immediately payable, without previous notice of default.
5.3.4. Partial payments will firstly be deducted from interest due, liquidated damages payments and possible costs and subsequently from unpaid invoices.
5.3.5. SiteManager is entitled to suspend or postpone its Services or its other obligations in connection with the Agreement if the Customer has not complied with a payment condition or other payment obligation.
6.1.1. The liability of SiteManagershall always be assessed in light of the best efforts obligation to which SiteManager has committed. In the case of inadequate Services, SiteManager’s liability is limited to the (renewed) performance of the missing or inadequate Services. If the (renewed) provision of the Services is not (or no longer) possible or reasonable, the Customer shall be entitled to compensation in lieu of the damage suffered.
6.1.2. The liability of SiteManager shall in all cases be limited to invoice value of the Services by SiteManager that gave rise to the damages and/or liability claim during the twelve (12) months preceding the date on which the liability claim arose. SiteManager shall never be liable for:
(i) damage or loss suffered by the Customer or third parties by incorrect, incomplete or late information and instructions from the Customer (incl. its Authorised Users);
(ii) damage resulting from malfunctions or defaults in network communications, devices or infrastructure belonging to Customer (incl. its Authorised Users) used for accessing the Studio and/or developing the Customer Site;
(iii) damage caused by the further use or application of the Studio and the Services by the Customer (incl. its Authorised Users) after a defect has been found;
(iv) damage caused by the improper, inadequate, unauthorised or unlawful use of the Studio / Services;
(v) damage caused by the theft or loss of the password for accessing the Studio due to negligence of the Customer (incl. its Authorised Users);
(vi) damage caused by Force Majeure in accordance with the provisions of Article 9;
(vii) indirect and consequential damage, such as, but not limited to, loss of profit, loss of savings, loss of revenue, loss caused by business interruption, damage to third parties.
(viii) any other claims, damages and loss caused by circumstances or causes outside of the reasonable control of SiteManager.
6.2. The Customer
6.2.1. The Customer will hold SiteManager harmless against all claims from third parties arising from the incorrect or unlawful use of the Services. It will cover all damages such as compensations or legal costs (including reasonable lawyer’s fees) providing that SiteManager has informed the Customer as soon as reasonably possible of any claim arising from that matter.
7. Support and Maintenance
7.1. When the Customer is in need of assistance or has an enquiry with respect to the Services, the Customer can contact the helpdesk of SiteManager on the e-mail address firstname.lastname@example.org.
7.2. Whether or not the support is included in the Fee, is described in the Agreement. If not, the support will be invoiced separately.
7.3. The Customer must offer all necessary assistance and co-operation to the helpdesk, e.g. provide a detailed description of the problem and the situation in which it occurred.
7.4. The helpdesk of SiteManager will do its best efforts to assist the Customer as soon as reasonably possible following the requested support.
7.5. SiteManager performs maintenance activities and implements updates of its Services (incl. the Studio) on a regular basis. SiteManager strives to minimise the impact on the availability of its Services and the Customer Site, but does not exclude any downtime in this respect. If the impact on the availability of the Services and the Customer Site is significant, SiteManager will strive to inform the Customer thereof.
8.1. Either party may terminate the Agreement per registered mail for material breach, automatically and without definitive court decision if the other party has committed a material breach and fails to remedy such breach within fifteen (15) days of written notice of default by the claiming party. Parties will consider (amongst others) the following events as a material breach:
(i) Repeated failure to pay invoices for which payment is due;
(ii) Failure to comply with the best effort performance of the Services for an extended duration;
(iii) Unauthorised or illegal use of the Services;
(iv) Intellectual property infringement (cfr. Article 11).
8.2. The Agreement may be terminated if an insolvency event occurs, i.e. a party ceases to pay its debts or ceases its activities, files for bankruptcy, liquidation of the legal entity or enters proceedings in receivership or judicial composition proceedings.
8.3. SiteManager shall never be obligated to refund the Customer any fees if the Customer terminates the Agreement during the Term without the termination being the result of a material breach of SiteManager. The Customer is still obligated to pay all Fees set out in the Agreement in addition to the cancellation fee as described in Article 33.
8.4. Regardless of the cause for termination, the following consequences will follow the termination of the Agreement:
(i) SiteManager shall stop performing its Services;
(ii) SiteManager is entitled to refuse any request from the Customer to enter into a (new) Agreement with regard to the Services.
(iii) Each party will discontinue its use and will return the confidential information and proprietary materials of the other party.
8.5. Articles 6, 10, 11, 14 and 16 shall survive the termination of the Agreement and continue in full force and effect.
8.6. The termination of the Agreement, for whatever reason, shall not prejudice the rights acquired by each party.
8.7. In the event that a customer transfers project ownership to another customer, all allocated legacy discounts will be cancelled. This includes any discounts that were applied to the project before the transfer of ownership. The new customer will be responsible for paying the full price for the project.
8.8. If a Customer who has purchased our software to build websites for their customers sells their portfolio to a third party, and that third party utilizes a competitive software to convert the websites from our platform to another, we reserve the right to directly communicate with the website owners.
We may, at our discretion, propose a direct offer to the website owners, inviting them to become a direct customer of our software, independent of the original customer. This offer shall be made in a fair and professional manner, respecting any existing contractual agreements between the website owner and the original customer.
9. Force Majeure
9.1. In the event of Force Majeure, each party has the right to temporarily suspend the performance of its obligations without being liable for any damages.
9.2. A situation of Force Majeure that continues beyond three (3) months shall entitle either party to terminate the Agreement with immediate effect by simple written notification, without judicial intervention and without any liability.
10. Confidentiality and non-solicitation
10.1. All information marked as confidential or reasonably to be considered confidential, disclosed by SiteManager to the Customer prior to entering into an Agreement as well as during the Agreement shall be treated with the utmost secrecy.
10.2. The Customer shall:
(i) not use, reproduce, or allocate the confidential information in any manner or for any other purpose than their cooperation;
(ii) not engage in, nor authorise others to engage in, the reverse engineering, disassembly or the decompilation of any of the confidential information; and,
(iii) not derive any commercial benefit from the confidential information.
10.3. This confidentiality obligation applies during the course of the cooperation between SiteManager and the Customer and shall continue to exist for a period of three (3) years from its termination for any reason whatsoever.
10.4. SiteManager shall remain the sole owner of their own confidential information. Except as expressly set forth herein, nothing in these Terms or the relationship between parties shall grant the Customer any rights to or interest in the confidential information and no implied licenses are granted by these Terms.
11. Intellectual property rights
11.1. The Customer explicitly acknowledges that SiteManager shall own and retain all intellectual property rights with respect to the Services, the Studio and possible related Services (including all copies, modifications, extensions and derivative works thereof), such as, but not limited to: rights associated with the (source) code, other authorship rights, design rights, know how, domain names and database rights.
11.2. SiteManager explicitly acknowledges that Customer shall own and retain all intellectual property rights with respect to the materials, designs, trade names/trademark it owns and uploads to the Studio and/or are implemented on the Customer Site.
11.3. The Customer shall not use SiteManager’s company name, SiteManager’s Services names or SiteManager’s trademarks as part of Customer’s name or in any manner capable of misrepresenting the relationship between Customer and SiteManager. The Customer shall not alter, remove or tamper with the brands, trademarks, or other means of identification on the Services.
11.4. The Customer explicitly authorises SiteManager to use the Customer’s name and/or project as a reference for publicity purposes, such as by publication on the Website. In this regard, the Customer also authorises SiteManager to use the Customer’s name, trademark, logo, etc.
11.5. In case of breach of the obligations in this Article, a lump-sum compensation equal to five thousand euros (€ 5.000,00) per individual breach is due by the breaching party to the other party, without prejudice to the right of the other party to claim full compensation for all damage caused by the breach.
12.1. SiteManager as controller
12.2. The Customer as Controller
12.2.1. The Customer acknowledges that – with regard to the processing of all data entered and uploaded on the Studio and/or processed in execution of the Services – it shall act as controller and SiteManager as processor. All arrangements made between parties in this respect shall be solely governed by a data processing terms applicable between the Customer and SiteManager. The Customer explicitly acknowledges that by ordering the Services and entering into an Agreement with SiteManager to have read and accepted the applicable data processing terms.
13. Changes to the Terms
13.1. SiteManager reserves the right to change or update the Terms at any time. New or amended Terms shall apply from the thirtieth (30th) day after they were (implicitly) accepted by the Customer.
14.1. In accordance with the provisions of the Belgian Law on Financial Collateral of 15 December 2004, SiteManager and the Customer automatically and automatically offset all currently existing and future debts vis-à-vis each other. This means that in the permanent relationship between SiteManager and the Customer, only the largest debt remains after the aforementioned automatic compensation.
15.1. No waiver
15.1.1. Any failure or delay by SiteManager in exercising any right under an Agreement with the Customer, any single or partial exercise of any right under such Agreement or any partial reaction or absence of reaction by SiteManager in the event of violation by the Customer of one or more provisions of such an Agreement, shall not operate or be interpreted as a waiver (either express or implied, in whole or in part) of SiteManager’s rights under such Agreement, nor shall it preclude any further exercise of any such rights. Any waiver of a right must be express and in writing. If there has been an express written waiver of a right following a specific failure by SiteManager, this waiver cannot be invoked by the Customer in favour of a new failure, similar to the prior one, or in favour of any other kind of failure.
15.2.1. Any notice to be given under the Agreement shall be deemed duly given when sent by e-mail. It shall be deemed received one (1) working day after the date of dispatch.
15.3.1. If any part or any clause of the Agreement is for whatever reason held to be unlawful, invalid or unenforceable, such provisions shall be deleted and the remaining parts or clauses shall not be affected and shall remain valid and enforceable as if the invalid or unenforceable parts or clauses were not part of the Agreement.
15.3.2. Any such part or clause shall be replaced by a provision that, insofar as legally possible, comes closest to the intention of parties in the affected part or clause. Parties shall in good faith negotiate and agree a mutually acceptable provision that shall replace the deleted provision.
15.4.1. This Agreement and the rights and obligations ensuing from it for the Customer may not be transferred either directly or indirectly without the written consent of SiteManager.
15.4.2. SiteManager shall have the right to transfer any Agreement and the rights and obligations ensuing from it to a third party. In that case, a new agreement between Customer and the third party shall be concluded with terms and conditions (rights and obligations) identical to those in this Agreement for the remaining Term.
16. Jurisdiction and applicable law
16.1. Jurisdiction All disputes arising out or relating to the performance of this Agreement shall be subjected to the exclusive jurisdiction of the courts of the district in which SiteManager has its registered office.
16.2. Applicable law The Agreement as well as any agreement between parties, of whatever nature, are governed by and construed in accordance with the laws of Belgium, with exclusion of all conflict of laws rules.
III. MEMBERSHIP SPECIFIC CONDITIONS
17.1. The Customer is granted a Membership to the Studio and the requested AddOns, subject to the provisions in the Agreement concluded between Customer and SiteManager and the timely payment of the Membership Fees.
17.2. The Membership shall be activated and Customer shall be entitled to access the Studio, only after the Customer has (electronically) signed the Master Agreement.
17.3. The Customer is entitled to one Master User-account for each Membership. Concurrent use of any Authorised User-accounts is prohibited and shall be blocked by SiteManager. Additional Authorised Users can be added to the Membership through the Studio Add-Ons, subject to the provisions in Article 18.
18.1. Within the Studio the Customer is able to request and activate additional AddOns to its Membership such as, but not limited to, additional functionalities, features or Authorised Users.
18.2. Add-Ons shall be activated upon confirmation by the Customer and shall be invoiced to the Customer pro rata the remaining time of the Membership term, subject to the provisions in Article 20.
18.3. The Customer can disable Add-Ons during the term of the Membership. The deactivation of Add-Ons during the term of the Membership shall not entitle the Customer to any refund.
19.2. The Customer is entitled to access and use the Studio subject to the provisions in the Agreement. The Studio is provided to the Customer “AS-IS”. The Customer confirms it does not base its reliance on the Studio upon the development of any future functionality, features or data connectivity.
19.3. Use of the Studio
19.3.1. The Customer shall be responsible for procuring, maintaining and securing its network connection(s) to the Studio.
19.3.2. The Customer shall ensure its Authorised Users to access and use the Studio in accordance with the provisions in the Agreement. The Customer and its Authorised Users shall not access the Studio in a manner intended to avoid incurring any Fees.
19.3.3. The Customer shall use its best endeavours to prevent or terminate any unauthorised access, illegal use and/or incompatible use of the Studio. If the Customer discovers such unauthorised access and/or use, the Customer shall notify SiteManager immediately, which shall be entitled to take all necessary or useful measures to remedy such access and/or use.
19.3.4. If the Customer observes any deficiency or problem, the Customer is obliged to immediately cease the use of the Studio and make every reasonable effort – or have every reasonable effort made – to prevent any (further) damage.
19.4. Changes to the Studio
19.4.1. SiteManager reserves the right to change or update the composition of the Studio at any time.
19.5. Access suspension
19.5.1. SiteManager may at any time and without prior notice temporarily or permanently deny or suspend the Membership, if the Customer:
(i) Uses the Studio in a way that violates these Terms or legislation in force, or uses the Studio in a way that is detrimental to the integrity of third parties or the reputation of SiteManager;
(ii) Fails to pay the Fees due to SiteManager in a timely manner, subject to the provisions in Articles 5 and 21;
(iii) Has provided incomplete or inaccurate information when concluding the Master Agreement and/or fails to inform SiteManager of any changes in the data provided to SiteManager at the time of registration; and/or
(iv) Provided SiteManager with false or incomplete statements.
20. Term of the Membership
20.1. The term of the Membership is described in the Agreement. To the extent a definite duration has been agreed upon and unless explicitly stated otherwise in said Agreement, this term shall automatically be renewed for one year, unless either party gives notice of termination to the other party at the latest before the end of the term. Failure to do so will obligate the Customer to pay the invoice for the renewed term, even if the Customer has no intention to continue its use of the Membership.
21.1. Unless agreed upon otherwise, the Customer shall be invoiced annually at the start of the Term. Applicable Membership Fees can be found in the Studio.
21.2. When concluding a Membership Agreement, the Customer accepts automated debiting by SiteManager of the Customer’s bank account or credit card, unless otherwise explicitly agreed upon by the parties.
IV. SUBSCRIPTION SPECIFIC CONDITIONS
22.1. The Subscription entered into by a Customer entails the Hosting of one Customer Site by SiteManager and the requested Add-Ons by the Customer. SiteManager performs the Hosting, as part of the Agreement, on the basis of a best efforts obligation.
22.2. This best efforts obligation applies in particular to the availability of the Customer Site and the possible recovery in the event of an interruption of the Hosting. In light of this best efforts obligation, the Customer cannot make any claims for any damage it might suffer as a result of the interruption of the Hosting services.
22.3. The Customer shall always inform SiteManager in a timely manner of all circumstances that may affect the Hosting and the use by the Customer of the Hosting (in particular but not limited to an expected peak in use).
23.1. Within the Studio the Customer is able to request and activate additional AddOns to its Subscription such as, but not limited to, additional functionalities, or Capacity. Add-Ons shall be activated upon confirmation by the Customer and shall be invoiced to the Customer pro rata the remaining time of the Subscription term, subject to the provisions in Article 27.
23.2. The Customer can disable Add-Ons during the term of the Subscription. The deactivation of Add-Ons during the term of the Subscription shall not entitle the Customer to any refund in any way whatsoever.
24. Use of the Hosting services
24.1. SiteManager shall provide the Customer with the Hosting and Add-ons as agreed upon in the Agreement. Hosting includes, within the limits of the agreed Capacity: making the Customer Site fully or partially accessible via the internet, providing access to the Customer Site and storing the data and digital files of the Customer Site on its dedicated or cloud infrastructure.
24.2. The Customer is not allowed to exceed the stated Capacity. In the event the Customer exceeds the agreed Capacity SiteManager may charge the Customer on a pro rata basis at its usual rates.
24.3. SiteManager has the right to parameterise the Subscription in such a way that exceeding the Capacity becomes technically impossible. SiteManager can never be held liable in any way if the Customer would suffer damage as a result of not being able to exceed its Capacity.
24.4. The Customer is not allowed to perform any other operations or processing through Hosting, such as processing and running software or applications not provided by SiteManager or an approved Add-Ons which could potentially impact or cause damage to SiteManager or its Services, except with the prior and express permission of SiteManager.
24.5. The Customer Site is Hosted by SiteManager on infrastructure, such as servers, which also hosts (web)sites for other customers of SiteManager. Only if expressly agreed in writing will all or part of the Customer Site be made available on a processing unit reserved specifically for the Customer.
24.6. Any Capacity that is not used by the Customer within a given period, such as storage space or data traffic, cannot be accumulated and is not transferable to a subsequent period.
25.1. If necessary for the effective provision of the Hosting services, SiteManager or its third party hosting provider, may temporarily suspend all or part of the Hosting services for maintenance work. SiteManager will ensure that the interruption of the Hosting service does not last longer than necessary.
25.2. To the extent possible, any maintenance work will take place outside normal business hours. SiteManager will use its best efforts to notify the Customer in advance of any planned interruptions of its Hosting services. An interruption of Hosting services due to maintenance work can never be qualified as a fault on the part of SiteManager.
26.1. Unless parties have expressly agreed otherwise, SiteManager shall use its best efforts to perform the Hosting Services. Consequently, SiteManager does not guarantee that the Hosting services can be provided without interruption. The Customer is also aware that the quality and availability of the Hosting services provided is subject to the functioning of the internet and the various internet nodes and servers.
27. Term of the Subscription
27.1. The term of the Subscription and consequently the Hosting of the Customer Site by SiteManager is described in the Agreement. To the extent a definite duration has been agreed upon and unless explicitly statµed otherwise in said Agreement, this term shall automatically be renewed for one year, unless either party gives notice of termination to the other party at the latest before the end of the term. Failure to do so will obligate the Customer to pay the invoice for the renewed term, even if the Customer has no intention to continue its use of the Subscription.
28. Hosting suspension
28.1. SiteManager may at any time and without prior notice temporarily or permanently deny or suspend the Subscription of the Customer Site, if the Customer:
(i) Uses the Customer Site in a way that violates these Terms or legislation in force, or uses the Customer Site in a way that is detrimental to the integrity of third parties or the reputation of SiteManager;
(ii) Fails to pay the Fees due to SiteManager in a timely manner, subject to the provisions in Article 5 and 30;
(iii) Has provided incomplete or inaccurate information when registering and/or fails to inform SiteManager of any changes in the data provided to SiteManager at the time of registration, and/or;
(iv) Provided SiteManager with false or incomplete statements.
29.1. In the event the Subscription is terminated, SiteManager will suspend and terminate its Hosting Services for the applicable Customer Site. Unless otherwise agreed upon, the Customer does not have the right, after the termination of the Subscription, to migrate and/or transfer the Customer Site.
29.2. If the termination of the Subscription is due to an insolvency event on the part of SiteManager, as described in Article 8.2, SiteManager will provide the Customer with the static code of the Customer Site. The provision of any other information, software and/or code, including the source code of the Studio, are explicitly excluded and can never be demanded by the Customer.
30.1. Unless agreed upon otherwise, the Customer shall be invoiced annually at the start of the Term. Applicable Subscription Fees can be found in the Studio.
30.2. When concluding an Agreement regarding a Hosting subscription, the Customer accepts automated debiting by SiteManager of the Customer’s bank account or credit card, unless otherwise explicitly agreed upon by the parties.
V. CONSULTANCY SPECIFIC CONDITIONS
31. Performance of the Consultancy services
31.1. SiteManager shall at all times execute the Agreement and the Consultancy services with due diligence, with appropriate care and in good faith, and will carry out the Services with understanding, skill, insight and ability, as reasonably expected of a professional experienced in consultancy services of comparable scope, complexity and size. All SiteManager’s obligations regarding its Consultancy services are to be considered best effort obligations.
31.2. SiteManager provides the Consultancy services on a fully independent basis and reserves the right to choose which methods of working it will apply in performing the Consultancy services. SiteManager reserves the right to (partially) outsource the performance of the Consultancy services to subcontractors, for which SiteManager shall assume liability towards the Customer.
31.3. The Customer shall provide SiteManager with
(i) all necessary co-operation in relation to this Agreement; and,
(ii) all necessary access to information as may be required by SiteManager in order to provide the Consultancy services.
31.4. SiteManager is entitled to rely on data and information provided by the Customer, without having to verify its accuracy and completeness. SiteManager shall make use of data and information provided by the Customer without accepting any responsibility in this respect. The Customer is responsible for the timely delivery, accuracy and completeness of the provided data and information, and indemnifies SiteManager from any claims in this context, including claims of third parties.
31.5. The Consultancy services are always limited to the duration and scope specified in the Agreement. If SiteManager establishes that the intended objective of Consultancy services before the start or during the execution of the Agreement cannot be realised, it will inform the Customer of this as soon as possible.
31.6. In such case, efforts will be made to consult and possibly adjust the object of the Agreement. In case of non-agreement or impossibility to adjust the scope, the Agreement will be terminated with immediate effect. Upon termination, the Customer shall always be bound to pay SiteManager for the Consultancy services provided and costs incurred up to that time.
32. Rights and obligations of the Customer
32.1. Unless otherwise agreed upon, the Customer and SiteManager will conclude a Master Agreement for the Consultancy services, which entails the agreed upon scope, execution terms, requested features, assistance or deliverables, and a fixed Fee. Any change in the scope of the Agreement, including but not limited to the scope, shall entitle SiteManager to revise the agreed upon Fees. Any Consultancy services requested by the Customer, which are not included in the initial Agreement will be invoiced separately by SiteManager.
32.2. The Customer warrants that all information communicated in accordance with Article 32.1 is accurate, current and complete enough to allow SiteManager to provide Consultancy services to the Customer.
33. Price and payment
33.1. Unless otherwise agreed upon, SiteManager is entitled to request the payment of 50% of the quoted Fees for the Consultancy services at the time of signing of the Agreement. The remainder of the Fees will be invoiced either at the moment of delivery of (intermediate) deliverables or after the completion of the Consultancy services by SiteManager.
33.2. Failure to pay the advance or the (remainder) of the Fees on time shall in any event lead to the suspension of the execution of the Consultancy services. If the Customer refuses to pay after a written notice, SiteManager reserves the right to cancel all or part of the Agreement relating to the Consultancy services and such cancellation shall be regarded as a termination by the Customer.
34. Complaints and non-conformity
34.1. Complaints relating to the Consultancy services must be delivered to SiteManager in writing or by e-mail by the Customer at the latest within a period of three (3) months after the provision of the Consultancy services, under penalty of inadmissibility.
34.2. Submitting a complaint shall not entitle the Customer to suspend its payment obligations.
35.1. In the event the Customer terminates or cancels the Agreement before the start of the Consultancy services by SiteManager, SiteManager will be entitled to keep the part of the Fees paid by the Customer in advance or to charge the possible price/costs associated with the time during which SiteManager had to keep its staff and/or company materials available, increased by 10% of the Fee of the cancelled Consultancy services with a minimum of €100 as fixed compensation, whichever is higher, without prejudice to SiteManager’s right to compensation for proven higher damage.
35.2. In the event of cancellation by the Customer of Consultancy services that have already commenced, SiteManager will be entitled to charge the full Fee of the Consultancy services, without prejudice to SiteManager’s right to compensation for higher proven damages.
36.1. SiteManager warrants that the deliverables of the Consultancy services will operate properly within the Studio. However, the Customer acknowledges that there is always the possibility that certain aspects of the deliverables of the Consultancy services may not operate completely error-free or according to the Customer's wishes. In particular, the Customer is aware and accepts that any additional orders may possibly interfere with previously developed parts for its Customer Site.
36.2. SiteManager does not guarantee that the deliverables of its Consultancy services will always operate without any interruption or that all errors will always be correctable. The Customer accepts that errors in the operation may result from the actions of one or more third parties. SiteManager does not guarantee that the deliverables of the Consultancy services will operate completely error-free and automatically with all types or new versions of internet browsers, operating systems, mobile operating systems or any other software. The Customer acknowledges that each operating system and each version of an operating system or browser has specific idiosyncrasies that make it likely that, barring specific programming to that end, the Customer Sites cannot be consulted or can be consulted only imperfectly on an operating system or browser version whose compatibility was not provided for in the Agreement.
36.3. SiteManager does not guarantee that deliverables of the Consultancy services delivered to the Customer are suitable for its intended use or are seamlessly adapted to the Customer's activities or business operations, unless such purpose is one of the features that have been agreed explicitly.
36.4. Any work necessary to adapt the Customer Site to new versions of web and internet browsers and any other software is not included in the scope and therefore not included in the Fee.
36.5. SiteManager will use its best efforts to repair errors in the display or operation of the Customer Site within a reasonable period of time. SiteManager may charge the costs of repair according to its customary rates in the event of user errors or improper use by the Customer or other causes not attributable to SiteManager.
36.6. Any warranty obligation pursuant to Article 36.1 and any repair obligation pursuant to Article 36.5 shall lapse irrevocably and permanently if the Customer makes changes to deliverables of the Consultancy services or has such changes made by a third party. The Customer accepts that additions and subsequent development work can always lead to unforeseen interference with the Customer Site.