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MEDIA*A
GENERAL TERMS AND CONDITIONS

1. DEFINITIONS
Media*A SPRL  (≈ private limited company) has its registered office at 18 La Closière in 1332 Genval. The company number of the business is BE 0479.701.523. The company has its place of business at the address 190/3 Rue du Cerf 1332 Genval.

The Customer is every natural or legal person who orders any of the goods or services from MEDIA*A as specified under article 3 of the present document (“the Services”).

The General Terms and Conditions are those set out in the present text.
2. GENERAL POINTS
2.1. The aim of the present General Terms and Conditions is to lay down the terms and conditions and procedures and arrangements under which MEDIA*A provides its Services to its Customers, and any such terms and conditions and procedures and arrangements which it may put in place in the future. These apply to all agreements concluded between MEDIA*A and its Customers as well as to all business relations between the latter.
2.2. The Customer hereby expressly confirms he has taken due note of the present General Terms and Conditions which he has been apprised of (by way of a hyperlink, a PDF file or any other means) by MEDIA*A at the time of the order. The Customer shall abide by said General Terms and Conditions to the exclusion of all and any other terms and conditions. By concluding a contract with MEDIA*A, the Customer hereby also expressly waives invoking his own general terms and conditions, if any. All of the provisions set out in the present document shall continue to apply throughout the entire term of the contractual relations and for all matters subsequent thereto.
2.3. Terms and conditions that derogate from the present General Terms and Conditions shall be accepted only by written acceptance thereof, duly signed by MEDIA*A. Moreover, all matters that have not been expressly addressed under any such terms and conditions that derogate from the present General Terms and Conditions and which MEDIA*A may abide by, shall continue to be regulated by the present General Terms and Conditions.
3. SERVICES PROVIDED BY MEDIA*A
MEDIA*A provides creative and technical consultancy services, technical management services (hosting, DNS, support) as well as databases, programming, illustration, audio-video editing/animation services, as part of the delivery of services such as the building of (corporate or promotional) websites, the development of online games, the creation of “Rich Media” advertising, e-mail marketing, “Mobile marketing”, mobile applications, “Content Management Systems”, interactive terminals, search engine optimisation, the purchase of key words or advertising space, etc.

The Services of MEDIA*A are detailed at the latter’s website at www.mediaa.be. MEDIA*A reserves the right to change its website at any point in time. The same applies to the nature of the Services provided.
4. FORMATION OF THE CONTRACT
4.1. Offers
None of the proposals, budget estimates, catalogues, brochures, price lists, miscellaneous information provided to the Customer through the http://www.mediaa.be website, constitute offers as such, and are provided without obligation on the part of MEDIA*A. Except where expressly specified otherwise, the above are provided only by way of information.

All written, precise and detailed offers made to the Customer by MEDIA*A are valid for a one-month period, unless expressly stated otherwise.
4.2. Quotes – studies – preliminary designs
All studies, preliminary designs, plans and proofs (photographs, drawings, sketches, models, templates, texts, videos, etc.) made by MEDIA*A, on any which medium (hardcopy, digital files, etc.), which fail to be followed by a firm and binding order within the set time limit shall be billed at the agreed hourly rate, raised with the expenses incurred.

In addition, the Customer waives all use of said studies, preliminary designs, plans and proofs and shall be required to return all media (containing said studies, preliminary designs, plans and proofs) provided to him by MEDIA*A, in perfect condition within 15 days after the decision was taken not to place a firm and binding order or within 15 days after MEDIA*A sent the Customer a request for the return of said media. If said time limit is exceeded, the Customer shall owe MEDIA*A a flat-rate sum in compensation to the amount of one hundred and fifty (150) EUR per medium and per week’s delay, unless expressly specified otherwise. A minimum flat-rate sum in compensation of five hundred (500) EUR per original document and of two hundred and fifty (250) EUR per duplicate may be demanded in case of loss or damage thereto.
4.3. Orders
Any orders which were not preceded by a prior written offer which was unreservedly accepted by the Customer shall not be binding on MEDIA*A unless said orders were expressly accepted by the latter.

All orders are irrevocably binding on the Customer. They cannot be cancelled, even prior to the acceptance thereof by MEDIA*A, unless with the latter’s express agreement.

By operation of law, every acceptance of an order cancellation by MEDIA*A shall attract a sum in compensation of 35 % of the order amount to be defrayed by the Customer, without prejudice to all and any supplementary sums in damages and interests and in compliance with article 4.2 of the present General Terms and Conditions.

The sheer fact of the Customer sending in an order implies his unreserved acceptance of the present General Terms and Conditions.

The natural contact person specified in the order sent in by a legal person is presumed to have been vested with the authority to commit said legal person.
4.4. Place of the formation of the contract
The contract between MEDIA*A and the Customer is deemed to have been formed at MEDIA*A’s registered office, that is to say at the place where the acceptance of the offer is received.
5. INTELLECTUAL PROPERTY RIGHTS & KNOW-HOW
5.1. The use of all of MEDIA*A’s output, with the inclusion of the software (specific and standard) and the databases, is subject to the statutory provisions that protect intellectual property rights, with specific reference to the copyright laws and the laws governing neighbouring rights. Said use is strictly confined to the description put forward thereof under the present General Terms and Conditions.
5.2. Unless expressly specified otherwise, MEDIA*A retains full title of ownership of all and any intellectual property rights over its output and value-added work. The transfer of the media on which said output and value-added work are materialised shall not occasion the copyrights over said output and value-added work to be assigned along. In addition, the title of ownership of negatives, transparencies, sketches, lay out, slides, source codes, files and scripts also remains with MEDIA*A.
5.3. The output of MEDIA*A may be reproduced, communicated, distributed or used in any which way only with the latter’s written permission. As such, in no event are new originals or copies allowed to be made, of any which nature or in any which manner (reprographics, photocopies, microfilm, video, electronic, digital or analogue manipulation, etc.), of the output delivered by MEDIA*A, without the latter’s prior written permission.
5.4. In any event, any licences or transfers of these intellectual property rights over the services and value-added work brought by MEDIA*A at the Customer’s request shall take effect only as from the date on which the Customer’s payment in full has been received of the invoice relating to said services and value-added work. As such, all licences or transfers of intellectual property rights shall be made to occur subject to the condition precedent of payment by the Customer of the invoice(s) relating to said licences or transfers.
5.5. The output of MEDIA*A on no account or in any which way may be assigned to third parties without written permission from MEDIA*A.
5.6. It is incumbent on the customer to observe the moral rights relating to MEDIA*A’s output. The Customer also undertakes to observe the integrity of these creations and not to adapt or modify them without MEDIA*A’s prior consent. Moreover, unless expressly specified otherwise, at all times the name of MEDIA*A shall be required to be included on any authorised reproductions of MEDIA*A’s creations, regardless of the form or the intended use of said reproductions (internal or external).
5.7. The Customer hereby formally undertakes to provide MEDIA*A with a copy in corroboration of all authorised reproductions of creations or output by MEDIA*A within eight days as from the date on which said reproductions were made or disseminated.
5.8. Any infringements of the rights set out under the previous article or any use beyond the confines of the contract shall attract payment by the Customer of a flat-rate sum in compensation calculated on the basis of the SOFAM rates and, more particularly minimum flat-rate compensation sums of 200 % and 300 % over the evaded revenues from copyrights (see http://www.sofam.be), without prejudice to MEDIA*A’s entitlement to claim a greater sum in compensation to be duly corroborated by the latter.
5.9. MEDIA*A remains the owner of the know-how developed or used in the execution of the orders entrusted to its care and remains free to use said know-how for all and any other purposes, specifically to execute other orders. Unless expressly agreed otherwise, to this end MEDIA*A shall be entitled to freely re-use the software, graphics and code elements developed specifically for the Customer.
5.10. The Customer remains the owner of the elements and the data it has provided.
6. GENERAL OBLIGATIONS INCUMBENT ON MEDIA*A
6.1. MEDIA*A hereby undertakes to bring every effort to bear to ensure the stability, continuity and quality of the services it provides. In this respect, MEDIA*A enters into a best efforts obligation and hereby undertakes to make every effort required to fulfil the Customer’s order.
6.2. MEDIA*A cannot be held liable for any variations in graphics (colours, contrast levels, etc.) or sounds due to technical limitations for instance.
7. GENERAL OBLIGATIONS INCUMBENT ON THE CUSTOMER
7.1. The Customer hereby undertakes to provide MEDIA*A with all useful information and is the sole party responsible for the accuracy of said information. MEDIA*A is in no way responsible for the information communicated by the Customer and any loss or damage arising therefrom. The Customer shall reimburse MEDIA*A for all costs relating to any which loss or damage caused, whether directly or otherwise, by incorrect information supplied by the Customer.
7.2. The Customer hereby undertakes to maintain a valid e-mail address and a valid postal address and to inform MEDIA*A of all changes to its contact details or its legal situation.
8. GUARANTEES FURNISHED BY THE CUSTOMER
8.1. The Customer hereby guarantees that he holds all the required rights and/or authorisations and that he acts in compliance with applicable statutory provisions with regard to all of the elements, with specific reference to the texts, images, logos, graphics, photos, sound clips or video footage, files, software, databases, etc. which he places at the disposal of MEDIA*A with a view to including these elements into the latter’s own creations or intended to be hosted on the latter’s servers.
8.2. The Customer hereby guarantees that he shall hold MEDIA*A harmless against all and any claims from third parties asserting any which entitlements, for all uses by MEDIA*A of these elements. In this respect, the Customer shall hold MEDIA*A harmless against all and any claims, actions and/or demands which may be levelled against MEDIA*A by a third party, regardless of reason. To this end, the Customer undertakes to defray all sums, damages and interests which MEDIA*A may be sentenced to pay. This guarantee entails that the Customer shall assist MEDIA*A in its defence and compensate MEDIA*A for all losses arising for MEDIA*A from any which claim (with the inclusion of court procedure costs, legal assistance expenses, administrative and management expenses as well as all other costs directly or indirectly relating to any such claims).
9. PRICE OF THE SERVICES OF MEDIA*A
9.1. The price of the services supplied by MEDIA*A must be set out in a written document, approved by MEDIA*A.
9.2. Unless expressly otherwise provided for, all prices specified by MEDIA*A are in euro, exclusive of VAT, with all taxes, costs and incidental expenses relating to the services rendered coming in addition thereto. MEDIA*A reserves the right to pass on all new taxes and all rises in the rates of existing taxes to the Customer with immediate effect.
10. TERMS OF BILLING AND TERMS OF PAYMENT
10.1. The invoices raised by MEDIA*A, with the inclusion of deposits, are payable within thirty (30) days and without discount at our registered office.
10.2. The Customer has a five-day (5 days) time limit counting from the date of receipt of the invoice to apprise MEDIA*A, by letter sent by recorded delivery, of its refusal of the invoice, either in full or in part. Any such refusal must be duly reasoned. The partial refusal of the invoice shall not warrant the total non-payment of the invoice in question. All invoices that are not disputed within this five-day (5 days) time limit shall be considered as having been accepted to full and final effect by the Customer.
10.3. In the event of default of payment of an invoice upon its due date, payment of all outstanding invoices shall become immediately claimable.
10.4. By operation of law and without prior notice of default, all invoices left unpaid by the due date shall attract an interest on arrears of 1 % per month, due for each month already started.
10.5. In addition thereto, by operation of law and without notice of default, all invoices left unpaid by the due date shall be raised by a flat-rate sum in compensation for administrative expenses and recovery costs to the amount of fifteen (15) % of the amount remaining unpaid, with a minimum of two hundred and fifty (250) EUR per invoice.
10.6. The above provisions shall apply without prejudice to MEDIA*A’s entitlement to demand of a greater sum in compensation for the loss actually sustained.
11. TIME LIMITS
11.1. Unless expressly specified otherwise, the time limits specified by MEDIA*A for the execution of the services entrusted to its care are given only as a rough guide. However, MEDIA*A hereby undertakes to provide Customers with the Services entrusted to its care within a reasonable time span that is in keeping with the sector’s customary practices.
11.2. Unless expressly specified otherwise and under reservation of the provisions set out under article 19 of the present General Terms and Conditions, a delay on the part of MEDIA*A shall not in any way entitle the Customer to cancel the order or entitle him to any which compensation.
11.3. In the event of force majeure as intended under article 19 of the present General Terms and Conditions, of events similar to force majeure, of any economic unrest or of any which circumstances that have made it impossible or greatly difficult for MEDIA*A to fulfil its obligations, the prescribed periods shall automatically be suspended and the time limits duly extended under reservation of the provisions set out under article 19 of the present General Terms and Conditions.
11.4. In the event the parties agree on a specific time limit, MEDIA*A shall not, on any account, be held liable for any delays in the delivery of the services if the Customer has changed his original order or has been late in transmitting information and documents, or if he is late in transacting payment of invoices that are overdue.
12. TRANSPORT
12.1. Unless expressly specified otherwise, the delivery of the output by MEDIA*A shall take place at the latter’s registered office.
12.2. The risks involved in the transportation of the output as well as the postal charges, shipping and delivery costs thereof are to be paid solely by the Customer, regardless of the means of transport. As such, MEDIA*A shall be free to directly bill the Customer for all of its costs.
12.3. Upon receipt of the output by MEDIA*A, the Customer is to inspect the quality thereof and, if required, express his reservations to the carrier, without this warranting any delays in the settlement of MEDIA*A’s invoices.
13. COMPLAINTS RELATING TO THE SERVICES
13.1. All complaints relating to the services of MEDIA*A, regardless of nature, must be communicated by letter sent by recorded delivery within thirty (30) days following the date of receipt of the output or the value-added work.
13.2. Beyond this time limit, complaints shall no longer be accepted, with MEDIA*A wholly exonerated from any liability for all and any visible or apparent flaws or defects.
13.3. MEDIA*A must be given every facility to establish and limit the consequences of any such defects.
13.4. Defects in the output and value-added work shall not entitle the Customer to suspend payment of the amounts payable to MEDIA*A.
14. GENERAL LIABILITY OF MEDIA*A
14.1. MEDIA*A declines all and any liability for errors, omissions or errors in appreciation on the part of the Customer.
14.2. The applications, programmes and codes developed by MEDIA*A for the Customer, governed by rules or otherwise and/or subject to conditions or otherwise, are to be tested and validated by the Customer before being posted online/commissioned. This applies to all possible situations and to all deliveries (final or further to updates).
14.3. The Customer assumes full liability for the use of the output, services and value-added work of MEDIA*A, including in the area of “e-mail marketing”.
14.4. MEDIA*A cannot in any shape or form be held liable for damage to the applications it has designed, for the injudicious or erroneous use of the terminals, the partial or complete destruction of data transmitted or stored, all of which further to errors that are to be directly or indirectly attributed to the Customer.
14.5. MEDIA*A declines all liability vis-à-vis third parties who might feel prejudiced by its output, services and value-added work.
14.6. MEDIA*A cannot in any way be held liable for any indirect loss, that is to say all and any loss that directly and exclusively derives from the serious failure of the service furnished by MEDIA*A, such as commercial loss, loss of orders, adversely affected brand identity, business disruption of any which nature, loss of profit or loss of customers (for instance, improper disclosure of confidential information relating to these customers, further to the system becoming defective or being hacked) as well as for all complaints put forward by a third party against the Customer, for which the Customer shall act as its own insurer or be free to take out appropriate insurance cover.
14.7. In all cases, MEDIA*A’s liability shall be limited to fifty (50) % of the order amount.
15. CONFIDENTIALITY
15.1. Unless in order to defend their interests before a court of law and without prejudice to the provisions set out under article 21 hereinafter, as well as with the exception of the right of the parties to highlight the fact that they are working together in their advertising communications (the specification of the name and/or logo as well as the general description of the services provided), each of the parties hereby undertakes - unless with the prior written consent from the other party - not to disclose or communicate, or to allow to disclose or to allow to communicate, or to directly or indirectly use the confidential data, details, information, applications, methods and know-how, with the inclusion of and not confined to, the access codes and passwords, financial details, details of the hardware and software as well as all and any documents regardless of nature, which it is privy to as part of their business relation.
15.2. However, the following are not considered to be confidential: the information that is in the public domain at the time when such information is communicated, the information deriving from outside sources, the information that is developed independently and which was communicated pursuant to an administrative of judicial decision.
15.3. The duty of confidentiality set out under the present General Terms and Conditions shall last for as long as the information concerned continues to retain its confidential nature, beyond the date on which the business relations between the parties come to an end.
16. PRIVACY
16.1. Details of a private nature relating to MEDIA*A’s Customers are stored in MEDIA*A’s databases and are processed for the purposes of customer management (for instance the raising, recovery and verification of invoices, correspondence as part of the contractual relation or in the event of disputes and litigation), market surveys, the performance of the contract and the informational and promotional campaigns for MEDIA*A’s products and services.
16.2. If the Customer does not wish to be solicited by MEDIA*A as part of marketing campaigns, he is free to contact MEDIA*A (for the attention of Mr Jean Sprimont whose postal address is specified under article 1 - e-mail address: jean@mediaa.be) and ask for his name to be included on the list put in place for this purpose, entirely free of charge.
16.3. Providing proof of identity, the Customer can ask MEDIA*A by way of a written and duly dated and signed request, to be provided – entirely free of charge - with the private details relating to him, as well as, where applicable, for any such details found to be incorrect, incomplete or irrelevant to be amended.
17. SUSPENSION & CANCELLATION
17.1. In case an invoice is left unpaid within the time limits set out under article 10, MEDIA*A expressly reserves the right to suspend or terminate its services or even to cancel the agreement with the Customer.
17.2. In addition, if the Customer fails to comply with any which of his obligations, MEDIA*A reserves the right to suspend its own obligations, without said suspension entitling the Customer to any kind of compensation. The Customer shall be informed of the measure put in place by MEDIA*A by letter or by e-mail.
17.3. Without prejudice to the right to claim damages and interests, by operation of law any agreement that has been validly formed between MEDIA*A and the Customer may be cancelled in the case specified below:
  • In case of insolvency (cessation of payments, indebtedness, major financial difficulties, etc.), if bankruptcy proceedings are brought or any other similar or equivalent proceedings against either of the parties, if either of parties faces business interruption, the contract may be cancelled with immediate effect without prior notice of default by simple notification addressed to the other party.
  • If a third party were to assume de factor or de jure control, directly or indirectly, of one of the parties in such a way that this might seriously harm the interests of the other party, in that said party can no longer reasonably be expected to continue with the performance of the present agreement.
18. NO HIRE CLAUSE
18.1. The Customer hereby undertakes not to seek to hire the staff of MEDIA*A, whether directly or indirectly, except in the event the latter is declared bankrupt.
18.2. This recruitment ban shall remain in place throughout the entire duration of the contractual relations between the parties and for another 18 months after the contract has come to an end.
18.3. In case articles 18.1. and 18.2. are trespassed against, a sum in compensation equal to 24 months of the gross monthly salary earned by the hired member of staff at the time of his/her recruitment, shall be payable by the Customer.
19. FORCE MAJEURE
19.1. Without prejudice to the provisions set out under article 11.3, the parties shall not be liable for the non-performance or delays in the performance of the obligations arising from the contract further to the occurrence of a case of force majeure as generally acknowledged by law or case law (fire, explosion, breakdown of transmission networks, collapse of the installations, epidemics, earthquakes, flooding, power failures, war, embargos, laws, injunctions, demands or requirements made by all levels of government, strikes, boycotts, or other circumstance beyond the reasonable control of the aggrieved party).
19.2. The party aggrieved by an instance of force majeure shall be required to keep the other party informed on a regular basis of the possibilities to resume its obligations.
19.3. Nonetheless, if the case of force majeure were to persist for longer than 30 consecutive days, by operation of law this shall permit either of the parties to cancel the present contract, effective eight days after a letter was sent by recorded delivery notifying the other party of such a decision.
19.4. The financial impossibility for the Customer to pay all costs and expenses involved in the services brought by MEDIA*A is not considered as an instance of force majeure.
20. APPLICABLE LAW AND COURTS OF COMPETENT JURISDICTION
20.1. The contractual relations between MEDIA*A and the Customer are governed by Belgian law.
20.2. Without prejudice to MEDIA*A’s right to bring a matter before the court of the Customer’s place of residence or registered office, the courts and tribunals of the legal district of Brussels shall have exclusive jurisdiction to hear (in French) any disputes arising from the present agreement, even in third party proceedings or if multiple defendants are involved.
21. MISCELLANEOUS CLAUSES
21.1. The nullity, lapse or non-enforceability of all or part of one of the provisions set out above, shall not occasion the nullity of all of the present General Terms and Conditions. The provision found to be fully or partially void, lapsed or non-enforceable shall be deemed unwritten. The parties hereby undertake to replace said provision with another which shall act, in as much as possible, to serve the same purpose.
21.2. If the services provided by MEDIA*A were performed for several Customers or intermediaries, they shall be considered as joint and several vis-à-vis MEDIA*A.
21.3. MEDIA*A reserves the right to assign, transfer or confer onto a third party, in any which shape or form, its rights and obligations arising from the present contract.
21.4. Over and above all of the present General Terms and Conditions which shall remain applicable to all matters relating to the building of websites, “hosting” or the registration of domain names, the clauses set out below specifically apply to such orders from the Customer. 

In the event the specific provisions set out below under articles 22 et seq. of these General Terms and Conditions should be found to be at odds with the provisions set out under articles 1 to 21 of these General Terms and Conditions, the specific provisions under articles 22 et seq. shall take precedence.
22. SPECIFIC CLAUSES – WEBSITE CREATION
22.1. Unless otherwise specified, the Customer has ten (10) days counting from the date of receipt of the “beta” version to apprise MEDIA*A of its observations. Beyond this time limit, the “beta” version as made available shall be deemed to have been duly accepted and, in said case, as the final version. MEDIA*A shall make the improvements as soon as possible as required further to the observations notified in timely fashion by the customer to the provisional version which shall subsequently become the final version.
22.2. In order to be valid, all complaints relating to the final version must be submitted to MEDIA*A in writing no later than ten (10) days after the handover of said final version. Beyond this time limit, the work and the delivery shall be considered as having been duly accepted in full by the Customer.
22.3. With reference to the software, it is hereby specified:
  • With regard to the specific software: upon delivery of the final version of the website and provided full payment has been made of the price agreed, the Customer shall have a non-exclusive and non-transferrable right to use, free of charge, and for the territory and the duration as agreed, of the software and/or functionalities specifically developed by MEDIA*A for the Customer, to the fullest extent necessary for the operation of the site and the consultation thereof by Internet users. Unless otherwise agreed in writing, the Customer shall not – at any point in time - be permitted to assign, sell or disclose to third parties, the code, the ownership rights over which equally remain with MEDIA*A, not even to meet the need to adapt or improve the site for account of the Customer.
  • With regard to the standard software: the right of use granted to the Customer by MEDIA*A on the website built cannot be interpreted as the conferral to the Customer of a right of ownership, regardless of the standard software used by MEDIA*A to build said website, or over the software available on the market and required for the smooth running of the site, such as search engines, the application of databases, etc., for which MEDIA*A has a right of use from the right holder. If the Customer should decide at a later stage to have the site hosted on the servers of a third party, the Customer alone shall be responsible for making sure said third party has the right to use these self-same applications.
  • By operation of law, all breaches of the obligations set out above shall attract a minimum flat-rate sum in compensation equal to the amount of the bills raised by MEDIA*A for the building of said web site, without prejudice to MEDIA*A’s right to claim a greater sum in compensation by bringing proof that the loss sustained is greater than said amount.
22.4. MEDIA*A may ask for its name to be specified on-screen as the builder of the website at an appropriate place on the website built for the Customer, with a hyperlink to MEDIA*A’s website. The Customer shall see to it that this mention and link remain in place at the appropriate place, and are not obscured by other texts or elements.
22.5. MEDIA*A shall also be free to reference the Customer’s name, for advertising purposes or for the information of third parties, in the list of customers who have called on MEDIA*A’s services to build their website and to illustrate its work by including a few screenshots from the website build for the Customer.
23. SPECIFIC CLAUSES – “HOSTING”
23.1. Specific obligations and responsibilities of the Customer with regard to “hosting”
23.1.1. The website / Intranet / Extranet / Web Application of the Customer will be place online on the Internet under its sole responsibility.
23.1.2. The Customer hereby confirms and guarantees that he shall not trespass against Belgian and international law relating to the online posting of websites and the transmission of data through the Internet, both on his website, with the inclusion of the successive updates thereof, and all spaces containing digital files.
23.1.3. In particular, the Customer confirms and guarantees that his website does not contain texts and images of child pornography, or of a racist and/or xenophobic nature, or relating to counterfeiting or unlawful trading or activities. This includes links to other sites containing such elements. In addition, the Customer hereby confirms and guarantees that his website does not contain any materials likely to damage the MEDIA*A’s servers or any other servers on the Internet. Links to such sites are equally prohibited.
23.1.4. The Customer hereby also confirms and guarantees that he shall abstain from all bulk mailing operations of e-mails through the MEDIA*A’s servers. On no account are MEDIA*A’s servers allowed to be used as the source, intermediary or destination address of any “spam” or “spamming” operations (that is to say the sending of unsolicited e-mails), of troll e-mail campaigns or of “mail bombs” (that is to say of e-mails intended to harm the normal operation of a server or a website). In no event is the domain of the Customer allowed to be referenced as the origin, intermediary or the final destination of the kind of e-mails specified above. All indirect operations launched from other servers with other e-mail addresses but which ultimately serve to lure prospects or visitors to a website hosted on the MEDIA*A’s servers is prohibited. MEDIA*A shall also consider all sending of unsolicited e-mails to an e-mail address or discussion groups, which are generically referred to as “newsgroups”, as so-called “spam” operations.
23.1.5. The Customer hereby confirms and guarantees that he shall not appropriate himself of data that are not related to his account, whether on the MEDIA*A’s servers or other servers.
23.1.6. The Customer alone is responsible for any which use that is made of his account and the mailboxes linked to said account.
23.1.7. The Customer may not assign the rights arising from any which contract in place with MEDIA*A, nor sublet or sell, in full or in part, the spaced allocated for his website, without the prior consent from MEDIA*A.
23.1.8. The Customer is responsible for the protection of his data and software against the viruses and, in a general sense, for the protection of his equipment.
23.1.9. In any event, in compliance with article 8 of the present General Terms and Conditions, the Customer hereby expressly holds MEDIA*A harmless against all and any claims from third parties with regard to the contents of his website, the lawfulness of his website, the quality of his website or the exactitude of the data contained therein, with the inclusion of the contents any discussion forums.
23.1.10. Without prejudice to the provisions set out under article 23.7, in case of non-performance on the part of the Customer of his obligations, specifically those set out under articles 23.1.2 to 23.1.7. of the present General Terms and Conditions, MEDIA*A reserves the right to delete of its own accord the unlawful contents or services on the Customer’s website which is hosted by MEDIA*A.
23.2. Specific liability of MEDIA*A with regard to hosting
23.2.1. MEDIA*A shall put in place all reasonable measures in terms of security and accessibility of the data hosted on its servers.
23.2.2. Nonetheless, due to the characteristics and limitations of the Internet, which the Customer hereby confirms he is perfectly familiar with, MEDIA*A declines liability for:
  • Slow access to or problems accessing the hosted website due to the saturation of the network at certain times;
  • The non-delivery of e-mails or articles intended for discussion forums;
  • Virus contaminations of the Customer’s data and/or software;
  • Malicious intrusions (hacking) by third parties of the Customer’s website;
  • Damage to the equipment connected to the server;
  • The misappropriation of passwords, confidential codes, and in a more general sense, of all information that is sensitive for the customer. MEDIA*A shall transmit such details only to duly identified people who are authorised by MEDIA*A or at the express demand of the Customer, at the latter’s responsibility.
23.3. Maintenance and accessibility
23.3.1. MEDIA*A cannot be held liable for the momentary total or partial inaccessibility of its servers for reasons of maintenance or upgrade duties or due to Internet network disruptions.
23.3.2. In case of protracted problems with access to and/or the operation of MEDIA*A’s servers (over 15% of “downtime” per month), due to MEDIA*A, the parties hereby agree to determine all damages and interest on an irrevocable flat-rate basis, for the days on which the site was inaccessible for this reason, including the loss of business and all consequential or indirect loss in general, regardless of nature, resulting from of the inability to use the site, at an amount equivalent to the hosting fee for the site under contention for the duration of inaccessibility.
23.4. Limitation
23.4.1. Certain website configurations and certain types of processes constitute an overload for MEDIA*A’s servers and involve the saturation of the bandwidth that connects the sites and the servers to the Internet. As such, MEDIA*A reserves the right to limit or suspend the traffic to these types of sites.
23.4.2. MEDIA*A reserves the right to disable all web scripts or web pages, regardless of nature, that might affect the normal operations of its servers
23.4.3. MEDIA*A reserves the right to refuse, suspend or cancel:
  • All subscriptions to a website that use a technical process constituting an overload for its servers and the bandwidth connecting them to the Internet;
  • All subscriptions to a website whose contents MEDIA*A considers inappropriate according to the meaning MEDIA*A chooses to lend this term at its own discretion;
  • All subscriptions requested or held by a “spammer” or “mail bomber”, that is to say a person who engages in the kind of operations as described under article 23.1. of the present General Terms and Conditions.
23.5. Data back-up
23.5.1. As far as possible, MEDIA*A shall perform back-ups of the hosted data, about once a month. However, MEDIA*A offers no guarantees in this respect. The restoration of backed up data will be billed on an hourly time basis (per quarter of an hour) at the hourly rate of 90 EUR/hour excl. VAT.
23.5.2. In addition, the “log” files are deleted from MEDIA*A’s servers each week.
23.5.3. It is consequently for the Customer to put in place all measures necessary to ensure his data are duly backed up. As such, MEDIA*A recommends the Customer to perform a back-up at least once a month or at a greater frequency rate if deemed necessary.
23.6. Intellectual property rights

The hosting of the Customer’s website built by MEDIA*A cannot be interpreted as the conferral to the Customer of a right of ownership over any which software used by MEDIA*A for hosting the website.
23.7. Deactivation

If it emerges that the Customer has been involved in a operation that is prohibited pursuant to article 23.1 above, MEDIA*A reserves the right to deactivate his account without prior notice and without refunding the hosting fee for the ongoing period and to claim payment from the Customer of a sum in compensation to cover all losses sustained with a minimum of five hundred (500) EUR for this reason.
23.8. Suspension

In case of a suspension as intended under article 17 of the present General Terms and Conditions and specifically with reference to the provisional deactivation of the Customer’s website, the fee for the reactivation of the website after the situation has been redressed by the Customer stands at one hundred (100) EUR.
23.9. E-mail checks

MEDIA*A reserves the right to (automatically) check the contents of all e-mails passing through its servers in order to perform all customary checks with regard to spamming and computer viruses. In this respect, MEDIA*A declines all liability for the deletion of e-mails that are considered as “spam” or that contain computer viruses.
23.10. Hosting fees

The price for the hosting services by MEDIA*A is calculated on the basis of the prices paid by MEDIA*A to its own suppliers on the date when the order sheet is signed. When these prices are increased for MEDIA*A, the latter reserves the right to change the prices of its own hosting services in observance of 3 months’ prior notice to the Customer. If the Customer refuses to accept such an increase, he shall be required to apply for the cancellation of the hosting contract, by letter sent by recorded delivery with acknowledgement of receipt, within two months as from the date on which MEDIA*A sent out the aforesaid notice. Failing such, the Customer shall be deemed to have irrevocably accepted the new rates, which shall be implemented in the billing following the expiry of the aforesaid time limit.
24. SPECIFIC CLAUSES – DOMAIN NAME REGISTRATIONS
24.1. MEDIA*A is not a “Registrar” (a commercial entity accredited by one or several “Registries” to sell domain names) and as such acts only as an intermediary for Customer orders requesting the registration of domain names.
24.2. All requests addressed to MEDIA*A for the registration of domain names shall become final only upon receipt in full of the sums required for such services and, if applicable, upon receipt of all documents that may be required by the Registry for the purpose of such a registration (specifically: extract from the KBIS, extract from the RNE, etc.).
24.3. All orders by the Customer for the registration of domain names imply the prior and unreserved acceptance of the legal, administrative and technical domain name naming rules under the chosen extension, through the registration request put forward by the Customer, as well as the prior and unreserved acceptance of the rules governing the resolution of conflicts that might occur between the owner of a domain name and a third party in the territory concerned, through the registration request. In most cases, these rules are available to be consulted online at the websites of the various Registries.
24.4. On the grounds set out under the present General Terms and Conditions or on other reasonable grounds left at its sole discretion (such as a conflict with the General Terms and Conditions of the Registrars or Registries as well as a conflict with all statutory or regulatory provisions), MEDIA*A reserves the right to refuse the registration, renewal or transfer of a domain name ordered by the Customer. In this case, MEDIA*A shall refund the Customer all sums that have been paid for the purpose of said registration, minus the administrative expenses incurred, set at a flat-rate amount of twenty-five (25) EUR. The same shall apply in the event of the refusal by the competent Authority (Registrar or Registry) of the registration, renewal or transfer of the domain name desired by the Customer. MEDIA*A cannot in any way be held liable for the direct or indirect implications for the Customer of a refusal of the registration or renewal of a domain name by the competent Authority to whom the request was transmitted.
24.5. MEDIA*A hereby undertakes to make every reasonable effort to register the domain name as ordered by the Customer in compliance with the terms and conditions specified above.
24.6. Unless expressly requested by the Customer and the express agreement of MEDIA*A, MEDIA*A performs no checks as to the availability of the sign the Customer wishes to adopt for his domain name. MEDIA*A offers no guarantees whatsoever that the domain name chosen by the Customer is not in breach of third party rights. As such, the Customer hereby acknowledges as the sole party responsible for the choice of the domain name as well as any prejudices to any third party rights such as personality rights, intellectual property rights or, in a more general sense, a pre-existent distinguishing sign (more particularly a brand, trade name, company name, sign, pre-existent domain name, etc.).
24.7. The Customer hereby acknowledges that he uses the domain name which he has registered through MEDIA*A under his sole responsibility. In this respect, in compliance with article 8 of the present General Terms and Conditions, the Customer undertakes to defray all the sums and damages and interests which MEDIA*A may be sentenced to pay, regardless of grounds, by reason of the contents of the Customer’s website, the registration or modification of a domain name or the use of the message handling service.
24.8. The Customer alone is responsible for the renewal of his domain name. MEDIA*A declines all liability for cases where the Customer fails to personally request MEDIA*A in timely fashion to put in place the necessary steps for the renewal of his domain name.

Applicable General Terms and Conditions MEDIA*A– updated version as per 1 August 2012.