FUNKEY – General Terms and Conditions (Version 3.0 – May 2021)
1.Without prejudice to any particular terms and conditions included in a separate written agreement, these terms and conditions shall apply to any offer, quotation or agreement by and between FUNKEY BV, having its registered office at 9000 Ghent, Clematisstraat 10, and with company number 0680.777.078, and its Client or Partner. In the event of conflict between these general terms and conditions and any separate written agreement, the provisions of the separate written agreement shall apply. Acceptance of these general terms and conditions also implies that the Client or Partner fully waives the application of his own general terms and conditions.
2. Activity shall be understood to refer to the teambuilding and group activities offered on and bookable through www.funkey.be or a proprietary URL originating from FUNKEY (FUNKEY BIZZ). Client shall be understood to refer to the person who searches for an Activity on www.funkey.be’s database or a proprietary URL originating from FUNKEY (FUNKEY BIZZ) and requests quotes, or the person who books an Activity with FUNKEY. Partner shall be understood to refer to anyone who has entered into a partnership agreement with FUNKEY for the purpose of organizing an Activity.
3. FUNKEY’s quotes shall be valid for a period of 14 days, after which FUNKEY has the right to amend the quote unilaterally, unless agreed otherwise in writing. The offer shall be deemed accepted upon written confirmation by the Client. An altered, amended or supplementary order may entail an increase in the agreed price.
4. FUNKEY’s invoices shall be payable within 14 days of the date of invoice. In the event of late payment, interest shall accrue at a rate of 10% per annum from the due date of the invoice. In addition, after no notice has been served, a lump-sum penalty of 12% of the amount still due shall be payable, with a minimum of €25.00.
5.1 If at any time FUNKEY is in doubt as to the creditworthiness of the Client due to acts of judicial enforcement against Client, in the event of non-payment or late payment of one or more invoices and/or any other apparent event, FUNKEY expressly reserves the right to demand advance payment for services that are yet to be provided or to request (other) security. If Client refuses to comply with FUNKEY’s request, FUNKEY reserves the right to terminate the agreement unilaterally with no penalty, or in the event of non-payment, at FUNKEY’s discretion, to suspend its performance. In addition, in the event of non-payment of an invoice on the due date, any outstanding amounts owed by the Client shall become due and payable ipso jure and without prior notice of default.
5.2 FUNKEY also reserves the right to dissolve the agreement unilaterally with immediate effect and without any compensation if, in spite of a written notice of default with a term of at least seven (7) calendar days, Client remains in default with regard to the (timely and proper) fulfilment of one or more obligations under the agreement.
5.3 If FUNKEY proceeds to immediate and unilateral termination in the cases described above, a lump-sum compensation of 10% of the total price of the order shall be payable by the Client. Where appropriate, FUNKEY also reserves the right to claim compensation for costs, interest and loss suffered, and all FUNKEY’s claims against the Client shall become immediately due and payable.
6.1 In the event that a booking is cancelled due to force majeure (weather, pandemic, etc.), FUNKEY shall provide the Client with a voucher for the amount of any deposits already paid, so that the Activity booked can be organized at a later date.
6.2 In the event of unilateral (full or partial) cancellation of a booked activity by the Client, FUNKEY shall remain liable for the payment of costs already incurred, such as costs of conception, research, etc., and compensation for loss of profit. Such damages shall be assessed at a lump sum of 50% of the price of the accepted offer, without prejudice to FUNKEY’s right to claim payment of the greater loss actually suffered.
6.3 In the event of unilateral (full or partial) cancellation of a booked Activity by the Client less than 14 days before the planned event, the Client shall remain liable to pay the price of the accepted quote.
7. FUNKEY does not guarantee flawless operation of a computer configuration, whether due to external (power cuts, lightning, etc.) or to specific factors (network failures, etc.) for the computer configuration, which may include unexpected loss of programmes and/or data.
8.1 FUNKEY has insured its civil professional liability with AXA (policy no 010.730.493.391).
8.2 FUNKEY shall not be liable to the Client for gross or intentional misconduct by its Partner, employees, associates and/or representative in connection with the Activity. FUNKEY shall be liable only for its own deceit, fraud and wilful misconduct.
8.3 FUNKEY undertakes to provide information to the Client prior to the conclusion of the agreement. However, FUNKEY shall not be liable for the correctness, completeness or accuracy of the information provided to the Client prior to the conclusion of an agreement.
8.4 Insofar as FUNKEY relies on the cooperation, services and supplies of third parties (such as, but not limited to, the Partner) in performing its obligations, it cannot be held liable for any damage resulting from their fault, including their gross negligence or wilful misconduct.
8.5 FUNKEY shall not be held liable for any damage to or destruction of items belonging to the Clients, except where such damage or destruction is due to gross negligence on the part of FUNKEY. In the event of damage or loss of material provided by FUNKEY or the Partner at events, each lost or damaged item shall be charged to the Client at the current purchase price. The Client shall be liable for any damage caused by inappropriate or unsafe behaviour by its participants or employees.
8.6 FUNKEY shall not be liable for any damage suffered by third parties as a result of the Activity. The Client undertakes to take out insurance coverage for its civil liability for the duration of the event.
8.7 FUNKEY has the right to cancel an activity if it should pose a threat to its employees, its materials and/or to third parties, if weather conditions should disrupt the proper execution of the activity or if the event is prohibited or prevented for any reason by the authorities (e.g. due to pandemic). FUNKEY shall in no way be held liable for any form of compensation, but shall provide the client with a voucher for any advance payments already made.
8.8 FUNKEY and the Client shall not be bound to fulfil any obligation if they are prevented from doing so as a result of force majeure, with the exception of the vouchers referred to in Article 8.7. Force majeure shall be understood to include, but not limited to, failure of Partner to fulfil its obligations properly, as well as defects in items, materials or software of third parties which the Client or FUNKEY has stipulated to be used, as well as a pandemic, natural phenomena such as floods, storms, etc., and all circumstances beyond the reasonable control of the parties.
8.9 The contractual and extra-contractual liability of FUNKEY and the Client shall at all times be limited to €25,000 per claim. Any claim for damages shall lapse by operation of law if it is not brought before a competent court within three years after the facts on which the claim is based became — or could reasonably have become — known.
9. If the Activity is recorded on video or photo, FUNKEY or the Partner shall ask for permission in advance.
11. The nullity of any clause of these general terms and conditions shall not entail the nullity of any other clauses thereof.
12. Agreements with FUNKEY shall be governed by and construed in accordance with Belgian law. Any dispute relating to the conclusion, validity, execution and/or termination of these agreements shall, failing an amicable settlement, be settled by the courts of the judicial district of Ghent.