termes et conditions

1. Introduction:

These General Terms & Conditions of Service (“General Terms”) govern the relationship between you and us. By accessing, using and / or subscribing to any of our Products in any way, you agree to be bound by these General Terms. In the event of a conflict or any inconsistency between these documents, the following order of precedence shall apply: (i) the General Terms; and; (ii) your relevant specific Product terms & conditions.

2. Definitions:

“Agreement” means these General Terms and your relevant specific Product terms & conditions;

"MasterArt", "we", and, "us", mean MasterArt SRL, 63 square Marie Louise, 1000 Brussels, Belgium, registered at the Crossroad Bank of Entreprises under number 0861.916.165, its agents, employees and affiliates;

"Billing Period" means the time period of subscription services relating to an individual invoice;

“Confidential Information” of each party shall mean all information, in whatever form, disclosed, made available by, or otherwise emanating from the party in connection with this Agreement (and shall include its terms and, in the case of our Confidential Information, all information relating to the specification and performance of the Products). Confidential Information shall not include information which: (i) at the time of disclosure is in the public domain; (ii) after disclosure becomes part of the public domain otherwise than by breach by a party of the provisions of this Agreement; (iii) was already in the possession of the receiving party at the time of disclosure; (iv) was received by the receiving party after disclosure from a third party who was not required to hold it in confidence; or (v) is trivial and/or obvious;

“Content” means any photographs, pictures, content, text, artwork, files, programs, sound, graphics, video, data, and other similar materials that you upload or "posts" to their website or stores using services provided by us or material uploaded by your end users;

“Excluded Event” means (i) incompetence, misuse or other error of a user of the Products, erroneous data or data incorrectly prepared by you; (ii) failure by you to access or use the Products in accordance with this Agreement, any documentation or our instructions; (iii) any change, addition or variation to the Products or its operating environment outside our normal procedures made by you or at your request ; (iv) any change, addition, variation or repair to the Products other than those carried out by us; (v) use of the Products in combination with other systems, software or equipment of yours (or any third party) not approved by us; (vi) any telecommunications network defect, delay or failure or failure of your hardware or other systems; and/or (vii) any failure in performance of the Products or their availability caused by matters other than the hardware, software, networks, databases and other information technology equipment owned or controlled by us;

“Product” means (i) any type of ongoing, service provided by us that you choose to access, use and / or subscribe (“On-going Product”); and / or; (ii) any one-off service provided by us that you choose to access, use and / or subscribe (“One-off Product”). One-off Products include but are not limited to virtual tours, onboarding, data migration, custom website design (front-end) and development (back-end), training and consultancy work.

“Starting Date” means that date that we will commence providing services under this Agreement;

“Working Hours" means our advertised business hours on our website any day other than a Saturday or Sunday or a statutory public holiday in Belgium or Christmas Eve and New Years Eve when our offices are closed;

"You", means the any person who has accessed, used and / or subscribed to any Product and with whom this Agreement is made. You represent and warrant that you are at least eighteen (18) years old and are otherwise able to enter into and form binding contracts under applicable law.

3. Term and Commencement:

This Agreement shall commence from the date that you confirm your acceptance when purchasing any Products from us.

4. Products:

Subject to you paying the fees for the subscription of the Products you select, we shall provide the Products in accordance with this Agreement from the Starting Date. These General Terms apply to all Products provided by us. Specific terms & conditions may apply to Products provided by us. Our artist and gallery On-going Products are systematically subject to such specific terms & conditions, whose features are described on their respective pages of our website. Other Products may also have specific terms & conditions, whose features are described in schedules to this Agreement. We shall perform our obligations under this Agreement with reasonable care and skill. We do not warrant the continuous, uninterrupted, error free operation of the Products. We may make necessary modifications to the Products from time to time. We do not offer ad-hoc modifications to any of our subscription Products.

5. Payments:

We may increase our fees at any time at our sole discretion, giving no less than 30 calendar days notice. Price increases will come into effect at the beginning of your next Billing Period. Separately, our fees may be subject to an annual increase in line with inflation (“Inflation Price Rise”). The Inflation Price Rise will be capped at the Eurostat HICP - Annual average indices - Euro Area. You agree for the Inflation Price Rise to be automatically applied each year. For the avoidance of doubt, there will be no corresponding price decrease if there is a decrease in Eurostat HICP - Annual average indices - Euro Area over any such period. Payment of our invoices is due on receipt unless stated otherwise. We may charge a 1% late charge on any payments that are overdue for longer than 30 calendar days. If an invoice remains outstanding for more than 30 calendar days, we reserve the right to suspend access to the Products. Where payment is overdue for 90 calendar days, we reserve the right to terminate this Agreement and delete your data from our systems.

6. Support: 

Subject to the plan you have selected and the payment of any applicable subscription fees, support is available if one of your users has problems using the features of the system or for items that may not be explained with sufficient clarity by our training materials. The support services do not include: (i) diagnosis or rectification of problems associated with the other systems, software or equipment of you or any third party; (ii) customisation (back-end and front-end) or configuration services in respect of the Products; (iii) supporting queries received from specialist third parties whose professional services you have engaged (for example: SEO, ...); (iv) the rectification of errors that do not significantly impair or affect the operation or performance of the Products; (v) support rendered more difficult by an Excluded Event; (vi) operational advice and assistance to users; (vii) training services (including video calls and screen shares); or (viii) the preparation, formatting and testing of your data for data migration purposes. We reserve the right to charge for support that does not relate to the functioning of the Products or our servers in 15-minute increments at an equivalent to our standard hourly rates plus applicable taxes, for more information please contact : support@masterart.com. Please refer to the specific terms & conditions of each Product provided by us for any limitations to the level of support included. We can only provide support to your employees with a valid, named user login. Your subscription fee also covers self-service resources. We will use reasonable endeavours to respond within 12 Working Hours to you about any problems you report. If the investigation requires a specialised member of the team we will respond initially but may require additional time to adequately look into the issue raised. Front line support is available from our teams during Working Hours. Some issues may need to be referred to development teams in Armenia meaning the difference in time zones could delay resolution. A reduced level of support is available over the Christmas period and during public holidays in Belgium and Armenia. For urgent support, every effort will be made to assign a suitable technician outside Working Hours. If a fault renders a Product unusable for all users, owing to speed, login failure or non-connection, we would attempt to resolve this as a top priority, unless there is a persistent fault upstream of our servers.

7. Defects:

We will investigate any suspected defects within a reasonable timeframe. Once it is demonstrated that the problem is the cause of faulty code or database interaction, we will assess the severity of the issue and provide a remedy or workaround in a time frame that reflects the business impact to you. We will use all reasonable endeavours to remedy any defects in the Products that severely impair your ability to work as quickly as possible. Defects are classified solely at our discretion taking into account the overall impact to the customer base and risk from deploying the requisite change to our production systems. Where there is no actual coding or serving malfunction but it is established that the Product does not provide the function you require or do so in what you consider the best way, we will try to offer advice.

8. Confidentiality:

Without prejudice to each party’s other rights and remedies, each party shall treat as confidential any Confidential Information of the other and shall not divulge such Confidential Information to a third party nor make any use of such Confidential Information (other than in performance of this Agreement) without the other’s written consent. Nothing in this Agreement shall prevent a party from disclosing Confidential Information: (i) to those of its officers and employees reasonably required to have the same in order for such party to perform its obligations under this Agreement provided that such party shall procure that such officers and employees comply with the provisions of this clause; (ii) to its solicitors, accountants, surveyors, insurers and other professional advisors under an obligation of confidentiality; and; (iii) as is required to be disclosed by a party by an order of any court of competent jurisdiction or in connection with any proceedings of any such court or otherwise by force of law or regulation having the force of law or the rules of any regulatory authority. You permit us to make reference to you as a customer of ours in our publicity materials.

9. Data:

The data you add or commission us to import onto your system belongs to you. We shall be entitled to store, copy and use the data to the extent necessary to fulfil our obligations and exercise our rights under this Agreement. We may need to interrogate it or process its data in order to execute a support task or provide features, reports or metrics for your exclusive use. We may also gather generalised information about the size or quantity of data or levels of activity in order to help make sure that we have adequate server resources available. We may use your anonymised data to understand Product usage and market trends. This use may take place during or after the expiry of this Agreement, for any reason whatsoever unless: (i) a third-party supplier is being used to help us provide your Product; (ii) in order to provide support to the Products where we may also use a third-party supplier; (iii) in order to provide data synchronisation services to third parties that you have specifically requested; or; (iv) if we are required to by law or some legal process. We will only make copies of your data to provide backup services, for testing or for development work you have requested. Your data will be held only on third-party cloud-based services with appropriate security measures in place. In order to streamline the uploading and serving of images and documents for the Products we may use third-party cloud-based services. Transmission to and from these services is securely encrypted and where possible, the data is encrypted in storage. Where you suffer any loss of or damage to data directly as a result of our act or omission we will use reasonable commercial endeavours to restore the lost or damaged data from the latest backup of such data. That shall be your sole and exclusive remedy for loss of or damage to data under this Agreement. 

10. Termination:

You may terminate your subscription to any of the Products by giving written notice no less than 30 calendar days before the start of the upcoming Billing Period. Termination will come into effect at the start of the next Billing Period. No refunds will be given for subscription periods already paid for and any unpaid sums will become immediately due and owing on termination of this Agreement. We may terminate your access to any or all of the Products at any time, without notice, in the event of non-payment of our invoices in accordance with clause 5. Payments, for any other breach of this Agreement or a failure by you (in our sole opinion) to comply with applicable laws or where your conduct has or is likely to have a detrimental impact on our reputation. You agree that we shall not be liable to you, or any third party, for any termination of your access to the Products. We may terminate a part or whole Product subscription at our discretion, by giving you no less than 30 calendar days written notice before the start of the upcoming Billing Period. Termination will come into effect at the start of the next Billing Period.  Upon termination or expiry of this Agreement: (i) all rights to access and use the Products granted by us under this Agreement and your access to the Products (including access to the Content) shall cease; and ; (ii) upon the expiry of ten calendar days following such termination or expiry, we may destroy any of the Content in our possession.

11. Security:

You agree: (i) to set up and maintain your administrative log-in and all your users' login accounts with relevant privileges; (ii) to accept responsibility for keeping log in details safe and ensuring that passwords are sufficiently strong; (iii) to store your administrative login ID and passwords securely and notify us immediately if you think your administrative login ID and passwords are no longer safe. Users are responsible for all activities which take place when your credentials have been used, whether authorised or not; (iv) that we cannot change your passwords or add or edit user records or change privileges without written authority on letterhead paper from the verified business owner or a verified director; (v) that we cannot at any time be liable to rectify any malicious or negligent damage by anyone using an authorised login ID and password; (vi) that any work required by us to restore data as the result of a breach caused by you will be chargeable in its entirety at our standard hourly rate. For more information please contact: support@masterart.com; (vii) that you may not use another person's user details at any time, without their express permission; (viii) (a) that being user, we reserve the right to withdraw administrative access and suspend your account without notice if suspicious behaviour is detected, including but not limited to a suspected attack on the Products or their integrity; (viii) (b) that being end user, we reserve the right, in our sole discretion, to restrict, suspend, or terminate your access to all or any part of the Product at any time for any reason without prior notice or liability ; and; (ix) that your system administrators must make all necessary changes to add, remove and edit user permissions. If an administrator leaves your organisation, it is essential that another user has administrative access to remove their access and set up replacement users. 

12. Use:

We allow users to post material on the Products and share that material with other people in person, via email and via hyperlinks to web pages on other hosts. We do not control or endorse the Content and cannot guarantee the accuracy, integrity or quality of such Content. End users of Products may be exposed to content that they consider to be offensive and/or indecent or report that material published on your Products infringes the law. We will not be liable in any way for any Content or for any loss or damage of any kind resulting from the use of any Content transmitted via the Products and you agree to bear all risks associated with the use of any Content, including any reliance on the accuracy or completeness of such Content. We will follow up any suspected breach of these General Terms, respond to complaints from end users and cooperate to the fullest extent with any law enforcement agencies. You warrant and represent to us that the Content, your Products or exports, downloads or printed material from your database or any mailings, or public / private web pages created using the Products and its use by us in accordance with the terms of this Agreement will not breach any laws, infringe any person’s intellectual property rights or other rights or give rise to any cause of action against us in any jurisdiction. You will indemnify us and our licensors, directors, officers, employees and subsidiaries at all times against any claims, demands, costs (including legal costs on a full indemnity basis), expenses, losses and liabilities incurred by us as a result of any claim arising out of your breach of this clause 12. Use. We reserve the right to temporarily or permanently delete or disable your Content for any valid reason including copyright infringement. Deleted Content may be stored by us in order to comply with certain legal obligations and may not be retrievable by you without a valid court order. We acknowledge that in order to create Content pages on our Products which you can share, you may, from time to time, upload material for which you do not own the copyright. You acknowledge that all Content posted or stored on our Products, whether posted publicly or transmitted privately, is your sole responsibility and you have secured the necessary rights to publish copyrighted material. You agree to indemnify us and our subsidiaries, directors and officers against all legal costs, fines, damages and judgments resulting from legal action regarding any Content pages hosted on our Products. We do not claim any ownership rights to the Content posted or stored on our Products. However, we require your permission to display the Content within our Products. For this reason, you hereby grant to us a non-exclusive, fully paid and royalty-free, worldwide, limited licence to use, modify, delete from, add to, publicly display and reproduce such Content, including without limitation distributing part or all of the Content in any media formats through any media channels necessary in order to provide the Products. In the event of any dispute arising over the misuse of such Content, we reserve the right to remove material without warning. You agree not to use the Products to offer for sale or to sell anything that we, at our sole discretion, consider to be illegal, fraudulent, stolen, dangerous, subject to export control or in breach of sanctions.

13. Intellectual Property:

The copyright for the Content rests with you and any third parties from whom material may have been gathered. All intellectual property relating to the Products, (including without limitation the design, user experience, software and source code) belongs to us and our licensors and is protected by copyright, trademarks, patents and other intellectual property rights and laws. You shall have no rights in relation to those other than the limited rights of access and use granted in accordance with this Agreement.

14. Scope:

When signing up for the subscription of any Products, you should confirm that the Products will meet your requirements. You should not assume that we offer any service or feature that you need without checking in advance that it is included and meets your requirements. Our website outlines the inclusions for each of our Products. The following are excluded from the Products unless agreed separately in writing: (i) group or one-to-one training; (ii) Importing material or data entry for the material to your database or website; (iii) Translating your Content (or offering automatic translations) for any material or our administration systems into multiple languages, including button names, menus, etc.; (iv) Relating your website to any external system; (v) Any sections, special website pages, forms or functions that have not been discussed and agreed by us in advance; and (vi) Supporting queries received from specialist third parties whose professional services you have engaged (for example: SEO, …). Our website outlines the scope for each of our Products. The scope is subject to change. We will give no less than 30 calendar days’ notice of any changes.

15. Force Majeure:

Under no circumstances will either party or its agents or representatives be liable to the other for any delays or failures in performance or breach of contract due to events or circumstances beyond our or your reasonable control, including acts of God, war, acts by governments and regulators, acts of terrorism, accident, fire, flood or storm or civil disturbance.

16. Liability:

You are solely responsible for all activities and actions that take place through your personal account, even in case of unauthorised use by a third party of your access code. You shall immediately inform us when you become aware of, or suspects, any unauthorised use of your account. You will nevertheless be held to fulfil all commitments resulting from such use. Save in case of wilful misconduct or fraud, you agree that we and our subcontractors, are not liable for any injury, loss or damage that may occur to you, or to your employees, agents, guests or property from any cause whatsoever, prior to, during or subsequent to the period covered by this Agreement, except for bodily harm. You assume responsibility and agrees to indemnify, defend and hold us, our affiliates and their respective employees and agents harmless from and against any claims or expenses arising out of the (i) the execution of this Agreement or (ii) your acts, omissions or negligence, your employees, agents or contractors, by reason of any cause of action sustained by any persons or others. You assume all responsibility and liability for losses, damages and claims arising out of injury or damage to, or caused by, your uses, equipment, employees or representatives. UNDER NO CIRCUMSTANCES WE OR OUR AGENTS OR REPRESENTATIVES WILL BE LIABLE FOR ANY LOSS OF PROFITS, LOSS OF BUSINESS, INTERRUPTION OF BUSINESS OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND RESULTING FROM ANY BREACH OF THIS AGREEMENT, EVEN IF THE DAMAGED PARTY HAS ADVISED THE OTHER PARTY OF THE POSSIBILITY OF SUCH LOSS. Finally, the liability of MasterArt and its affiliates and your remedy for any claim of loss or damage arising from or related to this Agreement, regardless of the form of action, shall be limited to one-half of the annual subscription fees paid to us for the use of the Products.

17. Access, Errors and Omissions:

We shall make reasonable efforts to maintain and update the Products (which is made available “as is”), which also means that it will be subject to maintenance / correction of errors from time to time. You agree that we will not be liable in the event of any errors or omissions in the Products or in any related materials. It also acknowledges that continuous access to the Products cannot at all times be guaranteed and that we only have an obligation of means in this respect.

18. Assignment:

This Agreement cannot be assigned, in whole or in part, by you without our written approval. We may assign this Agreement, in whole or in part, without your prior written consent.

19. Severability:

If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be void or unenforceable, that provision will be enforced to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement will continue in full force and effect.

20. Additions or Corrections:

We may amend any terms of this Agreement at any time by giving you no less than 30 days calendar days’ notice. You agree to accept notice of additions or amendments and to consider them as part of this Agreement.

21. Applicable Law – dispute resolution:

All issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of this Agreement shall be exclusively governed by and construed in accordance with Belgian law and any dispute submitted to the exclusive jurisdiction of the French speaking courts of Brussels.

22. Language:

Unless expressly agreed otherwise, all parties acknowledge that the language of these conditions will be the working language in all commercial transactions with us. The original language of these conditions is English. Translations or documents drawn up in a different language will at all times be regarded as a bonus for you. In the event of any conflict, the English version will always prevail.