Terms and Conditions
The following General Terms and Conditions apply to all Services and Software provided under the Agreement by Supplier, unless otherwise explicitly agreed by the Parties in writing in the Agreement or otherwise after its execution.
In these Terms and Conditions, unless otherwise specified, the following definitions will apply:
“Agreement” means the terms and conditions as agreed and signed by the Parties including all applicable order forms, annexes and these Terms and Conditions, as amended or extended from time to time by the Parties according to the terms herein.
“Affiliate” means with respect to any Party, any other person directly or indirectly controlling, controlled by or under common control with such relevant Party. For the purposes of this definition, the term “control” as applied to any Party, means the possession, directly or indirectly, of power, factual or by law, to exercise a decisive influence on the designation of the majority of the directors of a company, or on its management or policy through ownership, voting share, by contract, or otherwise. Notably, there is legal control when it results from the possession of the majority of the voting rights linked to the shares of the controlled company.
“Applicable Laws” means all applicable federal, regional and local laws, case law, international laws, regulatory constraints and any rule, judgment, court order, instructions or measures of a public or administrative authority, judicial authority or governmental approvals including, but not limited to, anti-corruption laws, anti-terrorism and money laundering laws, import and export control laws, economic sanction and anti-boycotting laws, data privacy laws, safety and security laws, staff and labour laws.
“Confidential Information” means any and all oral, written, tangible or visual and non-public information exchanged and disclosed between the Parties whether or not marked as confidential or proprietary (whether recorded or not and, if recorded, in whatever form on whatever media and by whomsoever recorded) relating to the business, activities, assets, properties, services, deliverables, financial affairs, work methods, customers, clients or the supplier of a Party, including without limitation all customer lists, the supplier lists, marketing or sales plans and strategies, financial reports, trade secrets, software and forecasts and other non-public materials.
“Consultant” means the legal entity identified in the Agreement which provides the Services to the Company.
“Company” means the legal entity or natural person identified in the Agreement who receives the Services from the Consultant.
“Contractor” means a (sub)contractor, employee or representative that is engaged for performance of Services under the Agreement and acting on behalf of Consultant.
“Effective Date” means the latest signature date of the Parties, or in absence of the such signature the date on which the Company confirms the order form or latest when the Consultant starts to provide its Services.
“Fees” means the payments as defined, and structured and agreed by the Parties as set forth in the Agreement.
“Intellectual Property Rights” means any and all existing and future, registered or unregistered, intellectual property and proprietary rights, including but not limited to moral rights, works of authorship, copyrights, patents, utility models, industrial or other rights to any creation, invention or similar intellectual property, and any enhancements, customization, modifications, derivative work and new inventions, developments, improvements or updates and upgrades thereof, of any kind.
“Services” mean any consultancy, performance and service offering agreed by the Parties including requested deliverables pursuant to the Agreement and all documentation as provided by the Consultant to Company, including relevant preparations of it and may be specified in further detail in a commercial offer, an order form, a statement of work or any other agreement between the Parties, as the case may be.
“Parties” means the Consultant and Company and any other party to the Agreement, jointly together.
“Party” means the Consultant or the Company or any other party to these Agreement.
“Software” shall mean, programs, routines, symbolic languages and other operating information in the form of object or source code that control the functioning of hardware or other software and direct its operation; and including but not limited to databases and internet platforms created by Consultant or any third-party software applications used by it.
“Taxes” means any value-added tax, sales tax, income tax, consumption tax or any other similar applicable tax, duty, fee, levy or other governmental charge, customs duties and other levies.
“Term” means the period as set out in the Agreement during which the Services shall be provided. The Term starts on the Effective Date and expires as agreed by the Parties, unless it was terminated before in accordance with its terms.
“Terms and Conditions” means the present Terms and Conditions, applicable to the entire Agreement between the Parties.
2. The Services
2.1 The Services to be provided by the Consultant shall be the Services as outlined in the Agreement.
2.2 The Services will be provided by Consultant subject to the Agreement.
2.3 The Company may elect in its discretion to grant (or withdraw) limited representation powers to the Consultant for the proper performance of the Services under the Agreement. The Consultant shall exercise such representation powers as granted to him by the board of directors of the Company or by some other person(s) duly authorized in that respect by the board of directors. In case the Consultant is seen as a factual director of the Company, the Company will hold the Consultant harmless for any liability or damages occurred as a consequence hereof.
2.4 Within these guidelines, the Consultant shall have the sole and autonomous right to determine and direct the manner, method and time schedule in which the Services under the Agreement are performed by the Consultant. The Consultant shall use reasonable efforts to communicate to the Company all information, which is pertinent for the performance of the Services by the Consultant.
2.5 In performing the Services under the Agreement, the Consultant shall act as a self-employed independent contractor without subordination towards the Company or any of its Affiliates, and in no event the Consultant shall be treated or considered as an employee of the Company or any Affiliate. The Parties acknowledge and agree that the Agreement do not constitute nor create, and shall not be construed to constitute or create, any subordination or employment relationship between the Consultant and the Company (or any Affiliate).
2.6 The Consultant shall perform the Services in accordance with all Applicable Laws and shall be responsible for all registrations and filings in connection with the activities carried out by the Consultant.
3.1 The Consultant will engage one or more Contractors for the performance of Services under the Agreement. If the Consultant wishes to remove or reassign any Contractor, the Consultant shall give thirty days prior written notice to the Company and receive the Company’s prior written consent as to such removal or reassignment and as to a replacement. Such consent may not be unreasonably withheld or delayed.
3.2 If the Company wishes to remove or reassign any Contractor during the term of the Contract, the Company shall give thirty days prior written notice to the Consultant. The Consultant shall take reasonable efforts to assign a replacement Contractor to the Company.
3.3 Parties may update the Contractor’s list from time-to-time if needed, subject to the amendment of the Agreement in writing.
3.4 The Consultant shall be responsible for all activities conducted and compliance by its Contractors that are engage for the performance of Consultant’s obligations under the Agreement.
4. The Company’s Obligations
The Company will provide the Consultant with such information as it may reasonably need concerning the Company’s operations and answers to queries, decisions and approvals which may be reasonably necessary for the Consultant to provide the Services. The Company is responsible for ensuring that such information and answers are as accurate and complete as reasonably practicable.
5. Fees and Expenses
5.1 In consideration of the Services the Company shall pay to the Consultant, the Fees and expenses outlined in this article.
5.2 The Fees shall be paid and invoiced by the Company in accordance with the Agreement. All Fees indicated and agreed by the Parties are VAT exclusive.
5.3 The Company will pay or reimburse the Consultant for any such reasonable expenses which may be charged to the Company in accordance with this article upon presentation of the appropriate supporting documents as the Company may reasonably require, which will be invoiced together with the Fees. Parties shall use their best efforts to agree such expenses upfront.
5.4 All undisputed invoices properly issued by the Consultant in accordance with the Agreement will be payable within thirty (30) calendar days after the receipt of the invoice by the Company. Invoice that have not been disputed within such period deemed to be accepted. Any invoice remaining unpaid on the due date, unless validly disputed by Company, will be subject to an interest rate of 4% per month for the overdue amounts.
5.5 The Fees shall be inclusive of any and all consideration or compensation due to the Consultant for Services provided to, duties performed for, or offices held within, the Company or any of its Affiliate and shall be inclusive of any and all costs and expenses incurred by the Consultant in rendering his Services and performing his obligations under the Agreement, save for the expenses mentioned in this article. The Fee covers all costs incurred by the Consultant in the performance of the Services, with the exception only for (i) representation expenses, and (ii) expenses in relation to business travel and lodging abroad incurred or paid by the Consultant in the performance of its Services under the Agreement.
5.6 Each Party shall comply with its obligations under applicable Tax laws and pay their taxes as applicable to them. The Company may provide Supplier with a valid Tax exemption certificate authorized by the appropriate taxing authority. Any applicable Taxes will appear as separate items on the invoice. If mandatory Applicable Law requires the Company to withhold any Taxes on payments under this Agreement, the gross amount of the payable Fees by Company shall be adjusted upwards with the amount of the withholding Taxes. Company shall notify Consultant in writing and in advance of any withholding Taxes.
6.1 The Parties shall not during the continuance of Agreement (except in the proper performance of his obligations hereunder) and a period of three (3) years after its termination (howsoever arising): (i) make use or take advantage of, reveal, divulge or otherwise disclose to any person, any of the Confidential Information of which they may have become possessed; (ii) copy or reproduce in any form or by or on any media or device (or allow others to copy or reproduce) any documents, disks, tapes or other materials containing or referring to Confidential Information.
6.2 The receiving Party shall use using at least the same degree of care that the receiving Party employs to protect its own Confidential Information, but never less than a reasonable standard. Trade secrets of a Party shall be subject to the confidentiality obligations of this Agreement at all times so long as the trade secrets remain trade secrets under Applicable Law. The disclosure within its enterprise to another Affiliate of the receiving Party or to its contractors, consultants, investors and insurers with a “need to know” for the purpose of implementing the Agreement does not require the prior written consent of the disclosing Party, provided that any of these third-parties is subject to appropriate confidentiality obligations and may not be a competitor of the disclosing Party. The disclosing Party retains all right, title, and interest to its Confidential Information.
6.3 The provisions of this Clause (Confidentiality) shall not apply to any Confidential Information of the disclosing Party that: a) at the time of disclosure, is generally known to the public through no fault of the receiving Party; or b) at the time the of disclosure, has been made available to the receiving Party by a third-party having the lawful rights to do so without breaching any such obligation of non-use or confidentiality; or c) is proven by the receiving Party to have been independently developed by the receiving Party without making use of the Confidential Information of the disclosing Party; or d) the receiving Party is required to disclose in compliance with Applicable Laws, or to comply with governmental regulations. The receiving Party shall provider prior written notice of such disclosure to the disclosing Party and takes reasonable and lawful actions to avoid and/or minimize the degree of such disclosure and affords the disclosing Party as much notice as possible of such disclosure to allow the disclosing Party to do likewise.
6.4 If the receiving Party violates or threatens to violate its confidential obligations, the disclosing Party shall be entitled to seek injunctive relief without the need to post bond, in addition to any other available legal or equitable remedies.
7.1 Either Party represents that it has the full right and authority to enter into and perform this Agreement. The consummation of the Agreement and the transactions contemplated herein do not violate any outstanding assignments, grants, licenses, encumbrances, obligations, agreements or understanding between the signing Party and any other person or entity.
7.2 All Services and performances under the Agreement are made solely to assist and support the Company’s business with recommendations and are not and shall not be construed to be an admission of the truth of any fact or an admission of liability.
7.3 ALL SERVICES AND INFORMATION UNDER THIS AGREEMENT ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE RELATING TO ANYTHING SUPPLIED OR SERVICES PROVIDED UNDER OR IN CONNECTION WITH THE AGREEMENT, INCLUDING, BUT NOT LIMITED TO CONDITION, QUALITY, PERFORMANCE, TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, OR NON-INFRINGEMENT, UNINTERRUPTED OR NON-DELAYED SERVICES, ANY PART OF THEM.
8. Intellectual Property Rights
8.1 Nothing contained within the Agreement constitutes a transfer of any Intellectual Property Rights from one Party to the other Party and each Party acknowledges that no right, entitlement, or interest in the Intellectual Property Rights of a Party is extended to or conveyed to the other Party, except as expressly stated in the Agreement. Neither Party shall have the right to contest, claim or will undertake or try to obtain, register or apply for any Intellectual Property Rights or other rights, names, or designations owned by the other Party anywhere in the world. Neither Party shall do anything that might exhaust, misrepresent, change or otherwise compromise the ownership or Intellectual Proprietary Rights of the other Party or its suppliers under this Agreement.
8.2 Unless otherwise explicitly agreed by the Parties in writing, Consultant exclusively owns all rights, title and interests in all worldwide Intellectual Property Rights owned, made, created, developed or provided in the performance of the Services including its results under the Agreement, either specific to Company, Company’s customers or in general in connection with the Agreement or arising out of the business relationship between the Parties, either during, before or after the termination of the Agreement, which shall at all times solely remain or be automatically transferred to Consultant through assignment, entitlement or otherwise, including the entire right, title and interest.
9. Limitation of Liability
9.1 The aggregate liability of the Consultant to the Company arising out of any act, omission, event or circumstance or series of acts, omissions, events or circumstances relating to the Agreement or with respect to the matters contemplated herein shall in no circumstances exceed an amount equal to 50% of the Fees (excl. taxes and expenses) paid to the Consultant under the Agreement during three months prior to the event under which the damage occurred.
9.2 Notwithstanding anything to the contrary set out in the Agreement, the Consultant shall not be liable towards the Company for any indirect, consequential, punitive, incidental or special damages arising pursuant to the Agreement, including loss of revenue or profits, loss of business, contracts, goodwill or anticipated savings, damages due to business interruption, loss or corruption of data or reputational damage, even if the Party has been advised of the possibility of such damages.
9.3 Nothing in the Agreement shall operate to exclude or restrict a Party’s liability for: (i) death or personal injury resulting from its negligence; (ii) fraudulent misrepresentation; or (iii) any other liability to the extent prevented from being excluded by mandatory Applicable Law.
9.4 Further, either Party will not be liable to the other party for delays or performance failures, or inability to access the Service whether due to circumstances beyond its control (force majeure).
The Agreement shall be effective as from the Effective Date and shall continue in accordance with the duration determined by the Parties or until terminated by a Party in accordance with the Agreement.
11.1 In case the Agreement is concluded for an indefinite period with recurring Services, either Party shall have the right to terminate the Agreement for convenience at any time by means of a registered letter giving the other Party at least three (3) month notice. In case the Agreement is concluded for a specific project, the Parties cannot terminate the Agreement, except as explicitly allowed under this article hereafter.
11.2 Either Party shall have the right to terminate the Agreement forthwith by means of a registered letter to the other Party, without notice period and without any indemnity, compensation or damages, in the event of bankruptcy, composition with creditors or the liquidation of or with respect to the other Party (for the avoidance of doubt, any form of solvent reorganization or merger shall not be construed as such an event).
11.3 Either Party shall have the right to terminate the Agreement for cause by means of a registered letter to the other Party, without notice period and without any compensation, indemnity or damages, in the event: (i) the other Party is in a material or persistent breach with it’s a contractual obligation under the Agreement and fails to remedy such breach within fifteen (15) calendar days following a written warning by registered mail to correct the breach; (ii) of a serious misconduct affecting materially the Agreement; (iii) the other Party commits any fraud or act of dishonesty; (iv) the other Party is convicted of any crime, wrongdoing or offence or charged with any crime or offence which affects the reputation of the Consultant (other than (x) road traffic offences not punishable by immediate imprisonment and (y) offences which do not harm the reputation).
12.1 No Partnership – Nothing in this Agreement shall be interpreted or construed as creating or establishing the relationship of employer and employee between Company and Consultant or any employee or agent of Consultant.
12.2 Independence – Consultant shall retain the right to perform services for others during the term of this Agreement. For the avoidance of doubt, if Consultant provides or creates templates, clauses, documents, lists, or training material or other information to Client that have rather a generic character applicable to different industries and clients (“Generic Material”). Consultant may use and commercialize such Generic Material also for its other clients, provided such Generic Material does not include any Proprietary and Confidential Information, including, but not limited to specific information related to Client’s its own particular business, Client’s name, logo, address or product descriptions.
12.3 Insurance – In order to cover its business risks and to protect itself against losses, expense and liability either Party shall have an appropriate insurance coverage with a recognized insurance company in place.
12.4 Order Form: Parties may use a purchase order for the purpose of entering into a specific business transaction with commercial terms as agreed by Parties, in the format as provided by the Consultant, either via document, email, the internet or in any other way and format the Parties may agree. The Consultant shall review the purchase order submitted and duly signed by Company within due time for acceptance. the Consultant may accept such purchase order through a documented and authorized confirmation without the need of singing it. Without such confirmation, the purchase order is considered to be void, unless otherwise agreed by the Parties. Each purchase order shall be deemed to be a separate agreement between the Parties incorporating these General Terms and Conditions. Any other conflicting terms and conditions on such purchase order shall be void, unless otherwise explicitly agreed and signed by the Parties.
12.5 Personnel – Either Party is responsible for all activities conducted and compliance by its personnel, employees, agents, subcontractors and Affiliates that they may engage for the performance of its obligations under the Agreement.
Software: All Software, no matter if owned by Consultant or by a third party and used or provided by Consultant to Company shall be subject to the applicable license terms which apply directly to the Company.
12.6 Notices – Any letter, notice or other communication to be sent, delivered or made under or in connection with the Agreement shall be in writing, in Dutch, and, unless otherwise agreed, by registered mail to the registered office of the relevant Party (or any substitute address as one Party may notify to the other Party by not less than 5 business days’ notice). Any letter, notice or communication sent, delivered or made as set out above shall be deemed to be received on the day shown as the day of delivery of the same to the post office.
12.7 Entire Agreement – The Agreement constitute and contains the entire agreement between the Company and the Consultant with respect to the subject matter hereof and cancels and supersedes with effect from the Effective Date any and all prior agreements, offers, understandings or arrangements, written or oral, between the Company (or any representative of the Company) and the Consultant with respect to the subject matter hereof. In case of any conflict between the contractual documents, these Terms and Conditions shall prevail, unless explicitly agreed otherwise between the Parties in writing.
12.8 Interpretation – Headings in the Agreement are for convenience only and shall not affect its construction or interpretation. A reference in the Agreement to a “person” shall include any individual, company, corporation, firm, government, state or agency of a state, or any association, organization, trust or the Partnership (whether having or not having legal personality).
12.9 Waiver – No Party shall be deemed to have waived any rights or remedies arising out of the Agreement or out of any default or breach hereunder unless such Party executes the waiver in writing. If a Party waives a right or remedy arising out of the Agreement or out of any default or breach hereunder, such waiver shall not be construed to constitute a waiver of any other rights or remedies. No failure on the part of a Party to exercise, nor any delay in exercising, any right or remedy under the Agreement shall operate as a waiver thereof, nor shall any single or partial exercise by a Party of any right or remedy under the Agreement prevent any further or other exercise of such right or remedy or the exercise of any other right or remedy.
12.10 Severability – If at any time any provision of the Agreement is or becomes illegal, invalid or unenforceable in any respect under any law of any jurisdiction, neither the legality, validity or enforceability of the remaining provisions of the Agreement nor the legality, validity or enforceability of such provision under the laws of any other jurisdiction will in any way be affected or impaired. The Parties shall make all reasonable efforts and take all necessary actions to replace any illegal, invalid or unenforceable provision of the Agreement with a valid, legal and enforceable provision having the same economic effect for the parties and reflecting to the fullest extent admitted by law the provision so replaced.
12.12 Marketing: Unless otherwise agreed by the Parties in the Agreement and solely to identify each other’s business relationship, each Party hereby grants the right to the other Party to refer to the Party’s name, trademarks and logo in accordance with the Party’s trademark guidelines and instruction of the other Party’s webpage, in marketing, promotional and publicity materials. Any other use requires a prior written approval, which shall not unreasonably be withheld.
12.13 Costs – Each Party shall pay its own costs and expenses incurred in connection with the negotiation, preparation, execution and completion of the Agreement.
12.14 Non-Assignment – No Party shall transfer, assign or delegate any of its rights or obligations under the Agreement, in whole or in part, without the prior written consent of the other Party, which may not unreasonably be withheld. Payment of receivables under the Agreement may be assigned for the purpose of debt collection or factoring without prior consent but require a written notification to the other Party.
12.15 Amendment -The Agreement may be amended, restated or modified only with the written consent of all Parties.
12.16 Language – The Agreement is in the English language only; which language shall be controlling in all respects. Furthermore, all communications and notices made or given pursuant to the Agreement shall be in the English language.
12.17 No Solicitation: The Company shall not during the continuance of the Agreement and a period of twelve (12) months after its termination, whether directly or indirectly, alone or together with any other persons, on his own account or in conjunction with, through or on behalf of any persons, agents, intermediaries, joint ventures or alliances, whether as contractor, director, shareholder, consultant, subcontractor, employee or in any other capacity: (i) solicit, entice away or endeavor to entice away from or discourage from dealing with or induce to trade on different terms with the Consultant any person who was at any time during the continuance of the Agreement a customer, client or the Consultant of the same; (ii) supply or provide any goods or services normally supplied by the Consultant to any person who was at any time during the continuance of the Agreement a customer, client or the partner of the same; (iii) actively solicit the employment or endeavor to solicit or entice away from or discourage from being employed or hired by the Consultant, any person who was, on the date of termination of the Agreement or during a period of twelve months prior to the termination of the Agreement, an employee, director, trade representative, contractor, consultant, independent contractor or sub-contractor of the same. However, the foregoing shall not preclude the rights to make generalized searches for employees/staff by use of advertisements in the media.
13. Governing law and jurisdiction
13.1 The Agreement is governed by and must be construed, interpreted in accordance with the laws of Belgium without given effect to the conflict of law principles thereof. The courts of Antwerp have exclusive jurisdiction over any dispute, legal action and proceedings arising out of or related to the Agreement, including its termination, which shall be binding and enforceable upon the Parties worldwide.
13.2 Notwithstanding the foregoing, Consultant may bring legal actions against the Company in the country of incorporation, if it deems necessary for the enforceability of the payments by Company under the Agreement.