General terms & conditions
General Terms & Conditions: the present document entitled “General Terms & Conditions for consultancy and training services”
Services: the services that the Service Provider shall provide to the Customer, as described in the Specific Terms & Conditions. These services are at all times governed by the General (and Specific) Terms & Conditions.
Service Provider iLEAN NV & iLEAN Agile NV, with official seat located in Veldkant 33, bus A, 2550 Kontich, registered in the register of legal persons in [Antwerp (department Antwerp)] under number 0551.885.755 and 0761.802.762.
Customer: the customer stated in the Specific Terms & Conditions.
Employees: personnel members, personnel members of Affiliated Companies, independent employees, subcontractors, consultants, and any other natural or legal persons directly or indirectly involved in the provision of the Services.
Contract: these General Terms & Conditions and the Specific Terms & Conditions.
Force Majeure: the situation in which one of the Parties is impeded in the performance of the Contract, either in whole or in part and temporarily or permanently, beyond the control of the Party or Parties. This includes (but is not limited to): fire, war, terrorist attack, unfavourable weather conditions, force majeure on the part of the third party suppliers of the Service Provider, failures in goods, equipment, software or materials of third parties the use of which the Customer prescribes to the Service Provider, government measures, disruption of internet, data network or telecommunications facilities, unavailability of third party servers, strike, unavailability of Employees and/or their equipment, general transportation problems and electricity outages.
Party/Parties: the Service Provider and/or the Customer.
Specific Terms & Conditions: an agreement subject to these General Terms & Conditions and describing the specific performance modalities of this Contract.
Training: education, study days, training, coaching, training formulas, guidance programmes, development paths, e-learning, online training and other forms of training, and from the logistical and organisational support of training courses organised by the Service Provider for the Customer .
Consultant: the Employee(s) stated in the Specific Terms & Conditions whom the Service Provider draws on for the performance of this Contract.
Affiliated Company/Companies: the affiliated and associated companies within the definition of articles 1:20 and 1:21 of the Belgian Company Code.
2. Duration and termination
Duration and extension
2.1. The duration of the Contract is stated in the Specific Terms & Conditions.
2.2. Any enrolment in a Training by the Customer must be done via the registration form on the website of the Service Provider. Telephone registrations, registrations by e-mail or in writing are not accepted. The Service Provider is only bound to perform the Contract after explicit acceptance by both Parties of the order for the Services in writing.
2.3. If at the request of the Customer the Service Provider commences the performance specified in the Specific Conditions prior to the signing of the Contract, then the start of the performance is qualified as acceptance of the General and Specific Terms & Conditions.
2.4. The Customer can cancel free of charge up to 5 weeks before the start of the Training. If cancelled between 5 and 2 weeks before the start of the Training, 50% of the amount stated in the contract is payable by the Customer. If cancelled less than 2 weeks before the start of the Training, the full amount specified in the contract shall be payable. For cancellations less than 5 weeks before the start of the Training, the Customer will also pay all costs already incurred by the Service Provider in preparing the Training (e.g. trainer preparation time, reservation costs of classrooms, etc.).
2.5. The Customer may postpone the scheduled training days of a Training without charge until 5 weeks before the scheduled training days. If the training days of a Training are rescheduled between 5 and 2 weeks before the start of the scheduled training days, the Customer shall pay, in addition to the agreed training fee, an additional cost fee equal to 25% of the training fee. If the Customer postpones the scheduled training days of a Training less than 2 weeks before the scheduled training days, the Customer shall pay, on top of the agreed training fee, an additional cost fee equal to 50% of the training fee. When the scheduled training days of a Training are rescheduled less than 5 weeks before the start of the scheduled training days, the Customer will also pay all costs already incurred by Service Provider for reserving locations in relation to this Training.
2.6. In addition, the new date of the Training agreed between the Service Provider and the Customer must fall within 6 months of the originally agreed date.
2.7. One rescheduling of the scheduled training days of a Training is allowed, in case of a second rescheduling the conditions regarding the cancellation of a Training in article 2.4 apply.
2.8. No later than four (4) weeks prior to the end of the current contract period, the Customer may submit a request in writing to the Service Provider for the extension of the Contract. If the Service Provider agrees to this extension of the Contract, it will inform the Customer thereof in writing. Barring any clause to the contrary, the Contract will be extended under the same terms and for the same duration as the original Contract.
2.9. Without prejudice to its entitlement to compensation of damages, the Service Provider may, at its own discretion, suspend the Contract or rescind the Contract by operation of law, with no notice of breach required, with immediate effect and without judicial intervention, by the simple delivery of a registered letter:
(a) in the event of repeated or serious violation of the contractual obligations (such as late payment and/or non-payment on any individual payment deadline) by the Customer;
(b) in the event that the Customer has requested deferment of payment, is under a bankruptcy or suspension of payment procedure, is in an unstable credit position or is manifestly insolvent;
(c) In the event the Customer refuses to sign, confirm or accept the time sheet or any other time accounting system without valid reason;
(d) in the event of dissolution and liquidation of the Customer’s company;
(e) should any or all of the assets of the Customer be under foreclosure and/or a garnishment order at the request of a creditor or in the event of other executive or protective measures with respect to the Customer’s assets;
(f) in the event of proof or serious suspicions of fraud committed by the Customer;
(g) in the event that the Customer refuses to provide the requested information or has provided incorrect and/or false information.
2.10. Further, either Party may terminate the Contract if the other Party commits a demonstrated serious error or material contractual failure and does not rectify this within a period of thirty (30) calendar days after being notified by registered letter of default by the Party invoking the error or failure. Extension of the aforesaid period for remedy of the default will not be refused on unreasonable grounds if during the remedy period of thirty (30) calendar days the Party in default has commenced remedying the default and is making reasonable efforts to continue to do so.
2.11. The Customer explicitly waives the application of article 1794 of the Belgian Civil Code.
Consequences of termination
2.12. Excepting where the Customer terminates the Contract based on serious error or material failing on the part of the Service Provider, the Customer shall compensate the Service Provider for all Services performed and hours worked at the moment of termination.
2.13. The legal remedies stated in article 2.7 of these General Terms & Conditions apply without prejudice to the Service Provider’s right to demonstrate higher damages actually suffered using any and all legal means.
2.14. If the Contract is rescinded by one of the Parties, this rescission is considered to be effective as from the date of the postmark of the registered letter giving notice that the Contract is rescinded.
3. Intellectual property rights
3.1. Excepting where stated otherwise in the Specific Terms & Conditions, the Service Provider extends the Customer a limited, non-exclusive and non-transferable right of use in respect of the results of the Services it performs, as from the moment of full payment of all invoices as well as all other amounts that the Customer owes as a result of the failure in payment obligation. The Customer shall only use the results of the Services in the manner prescribed by the Service Provider.
The copyrights of the Training and any accompanying training materials rest with the Service Provider. The Customer may only reproduce or distribute the training courses and/or materials for their own use with the permission of the Service Provider, clearly stating the source. Any reproduction, modification or communication to third parties of all or part of these training courses and/or materials, in whatever form, is prohibited.
Unless the specific license stated on the materials defines differently. Eg materials that are creative commons licensed.
3.2. The risks associated with the Services provided transfer to the Customer at the moment of delivery.
3.3. The Customer is not permitted to remove or alter any indication concerning the confidential nature or pertaining to copyright, trademark, trade name or any intellectual or industrial property right from the software, websites, databases, equipment or materials.
4.1. Confidential information is defined as all information of any form whatsoever (oral, written, graphic, electronic, etc.), whether commercial, financial, technical or otherwise, exchanged between the Parties in the context of this Contract, which is marked or otherwise designated to show expressly or by necessary implication that it is confidential or proprietary to the disclosing Party or can otherwise reasonably be expected to qualify as being confidential.
4.2. Each Party and its Employees must keep confidential all confidential information received from the other Party in the performance of this Contract. Additionally, the Parties may only use the confidential information for the purposes of this Contract. The Parties may not disclose the confidential information to third parties without the written consent of the other Party. At a minimum, any information designated as confidential by one of the Parties will be considered as such.
4.3. The confidentiality obligation shall continue to exist for a period of three (3) years after disclosure, and will in any event end no later than three (3) years after the end of this Contract, regardless of the cause of the termination of the Contract.
4.4. The following information is not considered to be confidential information if and insofar it can be evidenced by the receiving Party’s written records:
(a) information obtained legally from a third party not bound by any confidentiality obligation or secrecy;
(b) information that a Party already knew before it was provided for the purposes of this Contract;
(c) information a Party developed independently without violating this Contract;
(d) information that came into the public domain without the doings or error of the Party receiving the information;
(e) information that must be made public pursuant to a judicial or administrative decision.
- 4.5. The Service Provider may also include the Customer in its customer list, publish a brief description of the assignment and use the Customer’s name and trademark for publicity purposes and PR activities.
5. The performance modalities
5.1. The Service Provider undertakes the obligation to perform the Services for the Customer.
5.2. The registration for a training is personal and individual and cannot be transferred to another person. In such a case, the customer cannot be replaced by another person for his/her participation either. Unless when this happens in mutual agreement with the service provide
5.3. Insofar as the Specific Terms & Conditions do not refer to any other capacity of the Customer, the Customer is irrevocably deemed to be a professional user acting in the context of its professional activities. The Customer is deemed to possess the relevant know-how in relation to the Services to be provided, and to engage personnel with the relevant expertise.
5.4. If during the term of the Contract the material specifications for the performance of the Contract change, the Customer will compensate the Service Provider for the additional training of the Consultant. If the Customer itself provides a training to the Consultant, then barring any provision to the contrary in the Specific Terms & Conditions the costs for this training are to be borne by the Customer.
5.5. To the extent possible, the Service Provider must report any scheduled interruptions of the performance of the Services (such as short-term illness, Consultant leave days, etc.) to the Customer in a timely manner.
Place of performance
5.6. The Services are to be performed in the suitable spaces owned or rented by the Service Provider, or in spaces belonging to the Customer as identified in the Specific Terms & Conditions. The work space and facilities will be in compliance with all requirements of law. The Customer indemnifies the Service Provider against claims of third parties, including the Employees of the Service Provider, who suffered damages in connection with the performance of the Contract and resulting from the acts or omissions of the Customer or from unsafe situations in the Customer’s organisation. The Customer shall notify the Consultant(s) of the house rules and safety procedures prior to the start of the Services.
5.7. Unless otherwise agreed, the Customer accepts that the Training are standard products not specifically created for its needs. Consequently, the Customer accepts that the Service Provider does not guarantee and assumes no responsibility with regard to the ability of the Trainings to meet the Customer’s specific needs. Service Provider takes all reasonable measures to provide the Customer with the most complete and accurate information possible, but without any guarantee in this respect.
5.8. The Service Provider shall perform its task within the framework of the performance of this Contract to the best of its ability and will take into account the technical instructions and guidelines it receives from the Customer in accordance with5.8 through 5.11 of the General Terms and Conditions.
5.9. The Services shall be developed and/or delivered by the Service Provider in the state in which they are at the moment of delivery (as is), and therefore with all visible and invisible errors and defects.
Under no circumstances does the Service Provider warrant the suitability or marketability of the Services for the performance of specific tasks envisioned by the Customer unless said tasks are explicitly covered in the Specific Terms & Conditions and/or the description of the functional specifications.
The Service Provider does not warrant that any intervention by the Service Provider will allow the resolution of the problem arising or that the alleged problem will no longer occur after its intervention, or that no other difficulties shall arise as a result of this correction.
The performance is rendered by the Service Provider with all due care that can be reasonably expected in accordance with the state of the art.
5.10. The Parties acknowledge and accept that the success of activities in the field of information and communication technology depends on timely cooperation. The Customer shall at all times promptly grant all reasonable cooperation desired by the Service Provider.
For some training courses, a sufficient level of knowledge or minimum technical experience is necessary and/or previous trainings must have been followed for the participant to be able to assimilate the given instruction satisfactorily. This will be clearly communicate before the event happens. The Service Provider is not liable in the event that the participant does not have the required basic knowledge.
5.11. The Service Provider provides the Services within the limits of this Contract and the information provided by the Customer. The Customer warrants the accuracy, timeliness and completeness of the information it provides, stated dimensions, requirements, specifications of the Services and other data crucial to allow the Services Provider to fulfil the obligations under this Contract. The Customer indemnifies the Service Provider for all damages resulting from incorrect, late or incomplete provision of information.
5.12. The Customer shall provide the Service Provider with all information, technical or general documentation or other explanatory material necessary for the Services.
Under normal circumstances, the Customer shall at all times bear the end responsibility for the running projects of which the consultancy Services of the Service Provider may be a part. The Service Provider is not responsible for incorrect, missing, late or conflicting instructions of the Customer.
5.13. The Customer at all times bears the responsibility for its existing infrastructure (including, but not limited to: hardware, software, websites, databases, monitoring and security procedures, adequate system management, etc.) and the proper functionality and safety of all its working materials.
Only the Customer is responsible for setting up procedures that allow them to reconstruct lost or modified files, data or programs at any time, regardless of the cause of the loss or modification. On a daily basis, the Customer must be able to dispose of the necessary back-up copies of its computer programs, files and data.
5.14. For the performance of this Contract the Service Provider will draw on the services of one or more Consultants. The Service Provider reserves the right to determine what Consultant shall be assigned to the performance of the Services, and to replace this Consultant as the Service Provider sees fit throughout the duration of the Contract.
Where deemed necessary or desirable by both Parties, the Parties may also agree to charge another Consultant with the performance of the Contract, either temporarily or permanently.
5.15. If the Consultant does not or no longer meets the set requirements, brings the Customer’s good name into disrepute or does not perform or no longer performs the Contract in accordance with any reasonable definition, the Customer is entitled to request the Service Provider to replace the Consultant. This does not discharge the Customer from its obligation to continue to pay for the Services performed by the Consultant.
If the Service Provider agrees to the replacement of the Consultant, it undertakes the obligation to provide the Customer with a replacement as quickly as reasonably possible. If the Service Provider is unable to provide a qualified replacement within a term of two (2) weeks, the Customer is entitled to terminate the portion of the Contract pertaining to the Consultant to be replaced.
6. The fee and payment modalities
6.1. The price for Services rendered by the Service Provider may be invoiced both on Time & Material basis or Fixed Price basis, as determined in the Specific Terms & Conditions.
6.2. The fees are exclusive of VAT and any other levies imposed or to be imposed by the government. Excepting where agreed otherwise in the Specific Terms & Conditions, these fees are exclusive of travel time and/or expenses.
In the case of Services on Fixed Price Basis, these Services shall be invoiced on the basis of a fixed price as specified in the Specific Terms & Conditions.
In the case of Services on Time & Material basis, these Services are invoiced on the basis of the daily/hourly rate stated in the Specific Terms & Conditions, multiplied by the number of days/hours worked. Unless otherwise agreed in the Specific Terms & Conditions, a minimum intervention will be at least four (4) hours. Any estimates in, for example, price or time quotations from the Service Provider are purely indicative.
InvoicingInvoicing of Services on Fixed Price Basis
6.3. Upon signing the Specific Terms & Conditions, the Customer undertakes to pay an advance of 20% of the price for the ordered Third Party Products and for Services based on a Fixed Price. The Service Provider is only bound to the execution upon payment of the aforementioned advance payment.
6.4. The outstanding balance for the Third Party Products and/or Services on a Fixed Price basis will be invoiced by the Service Provider on a monthly basis, unless a different payment schedule is agreed in the Specific Terms & Conditions.
Invoicing of Services on a Time & Material Basis
6.5. If the Services on a Time & Material Basis only last one (1) month, the Service Provider will invoice the Customer at the end of these Services. If the Services on a Time & Material Basis cover a period longer than one (1) month, the Service Provider will invoice these Services each month on the basis of the daily/hourly rate as agreed in the Specific Terms & Conditions.
6.6. The Service Provider may adjust the fees annually on 1 January based on the following formula:
New price = Base price * (0.2 + 0.8 * (New index /Initial index))
For which the following definitions apply:
- Base price: price at the start of the Contract;
- Initial index: the index published by Agoria “national average reference wage cost” for the month preceding the signing of the Contract;
- New index: the index published by Agoria “national average reference wage cost” for the month preceding the date of indexation.
6.7. In the event of a sudden fundamental change in circumstances with an effect on the agreed price that was both unforeseeable at the time of the determination of the price and that constitutes a disruption of the contractual equilibrium, then upon demand by either Party the Parties will meet to agree on a reasonable adjustment of the Contract. If the Parties are unable to reach a consensus after thirty (30) calendar days from the moment of the request to adjust the Contract, either Party has the option to cancel the Contract by virtue of notice by registered letter with a notice period of thirty (30) calendar days, without giving rise to any obligation for compensation on the part of the cancelling Party.
6.8. The Service Provider shall take all reasonable steps to perform the Services in accordance with the Customer’s work schedule. Barring any agreement to the contrary between the Parties, the work schedule will be assumed to be 38 hours per week. Where the work schedule is more than 38 hours per week, the following increases will be applied (non-cumulative):
- performance > 38 hours/week: + 50%;
- performance > 7.6 hours/day: + 50%;
- performance between 10 PM and 7 AM: + 100%;
- performance on Saturday: + 50%;
- performance on Sunday or public holiday: + 100%.
6.9. Barring an agreement in writing between the Parties to the contrary, the Consultant will have his/her performance hours signed off by the Customer in the form of timesheets or some other timekeeping system agreed between the Parties.
6.10. The Service Provider shall invoice the Customer for the fee referred to above on a monthly basis. All invoices are payable thirty (30) calendar days after the date of invoice, unless specified otherwise in the Specific Conditions. The absence of a protest of an invoice in writing within eight (8) business days from the date of sending of the invoice constitutes irrevocable acceptance of the invoice and the Services set out within it.
6.11. After expiry of the payment period, the Customer is automatically in default without any prior notice being required. Upon the expiry of the payment period, the Customer incurs conventional interest charges equalling the interest rate as defined in Article 5 of the Belgian Act on payment arrears (Act 2 August 2002, Belgian Official Journal 7 August 2002), increased by 3%. This interest is calculated as from the deadline for payment of the invoice up until the date of full payment.
6.12. In the event of late payment of an invoice:
(i) the Service Provider is entitled to increase the amount of invoice by 15% as compensation;
(ii) all costs, the extrajudicial collection of the invoice, and the costs of legal proceedings and enforcement are to be borne by the Customer;
(iii) all claims against the Customer not yet due are immediately incurred, exigible and payable; and
(iv) The Service Provider is entitled to suspend all its Services in regard to the Customer without prior notification.
6.13. The Customer is not entitled to settlement or suspension of a payment.
6.14. If in the opinion of the Service Provider the Customer’s creditworthiness so dictates, the Service Provider may, even after the signing of the Contract, require the Customer to furnish security requested by the Service Provider for the payment of the Services yet to be provided, and the Service Provider may suspend performance as long as the security is not furnished.
7. Relationship between the parties
7.1. The Service Provider will enjoy complete freedom and independence in the performance of the Contract. There is no hierarchical relationship between either the Service Provider and the Customer or the Customer and Consultant(s) used by the Service Provider. Under no circumstances does the Service Provider transfer any employer’s authority to the Customer excepting insofar as permitted by the applicable legislation as set out below.
7.2. The Parties acknowledge and accept that they are familiar with the Act of 24 July 1987 governing temporary labour, the secondment and posting of employees for users, the changes implemented by the Programming Act of 27 December 2012 and the changes that may be made from time to time and published in the Belgian Official Journal (Belgisch Staatsblad). The Parties undertake the obligation to comply with the provisions of these acts of legislation.
7.3. The Customer may not give any instructions to the employees of the Service Provider (and/or employees of the subcontractors the services of which are called upon by the Service Provider) other than the instructions given in this Contract in relation to the standards of conduct and safety, time management, the applicable policy standards and procedures of the Customer identified in this Contract, and/or the work to be performed by these employees.
7.4. The Customer is not authorised to make decisions in regard to:the recruitment process;
· the remuneration package (definition of salaries and benefits, expense reimbursement, etc.);
· disciplinary matters;
· dismissal and related policy;
· management of attendance and absence from work (vacation, sick leave and other forms of absence);
· employment relationships and organisational aspects relating to employees of the Service Provider (and/or employees of the subcontractors the services of which are called upon by the Service Provider).
7.5. Any instructions given by the Customer to employees of the Service Provider (and/or employees of the subcontractors the services of which are called upon by the Service Provider) in regard to the work to be performed must remain strictly limited to the operational and technical aspects of the provision of the Services, and may not under any circumstances effectively entail the authority of an employer; these instructions must pertain purely and exclusively to the following:
- scheduling of the Services to be provided;
- timeframe within the Services must be completed, if applicable;
- processes and procedures of the Customer as agreed by the Parties and which must be observed in the performance of the Services (for example in relation to those of safety or access);
- access to locations and facilities of the Customer for the purposes of the performance of the Services;
- use of the material, infrastructure, tools or facilities of the Customer for the purposes of the performance of the Services;
In cases of doubt, the Parties must consult on the applicability of an instruction of the Customer.
7.6. The Specific Conditions may include more specific details about the instructions that the Customer may give. This list may be altered at any time during the term of the Contract.
7.7. The Customer must meet the obligations placed on the “user of the services” under the Programming Act specified above.
7.8. The Customer shall indemnify the Service Provider against all claims, damages and liabilities resulting from noncompliance with article 7 of these General Terms & Conditions.
8.1. The liability that the Service Provider may incur is derived from a best effort obligation that in cases of claim must be appropriately demonstrated by the Customer.
8.2. Insofar as maximally permitted by applicable law, the total liability of the Service Provider based on attributable failure in the fulfilment of the Contract is limited to the reimbursement of direct damages up to a maximum of the compensation owed by the Customer for the specific Services that gave rise to the damages (excluding VAT). If the services extend over multiple years, then for the compensation of direct damages the Service Provider may be held to a maximum of the value of the amounts invoiced for the performance of this Contract for the specific Services (excluding VAT) over a period of twelve (12) months prior to the date that the damages-causing event occurred. Under no circumstances shall the total liability for all direct damages during the entire duration of the Contract exceed the fee paid by the Customer for the specific Services (excluding VAT). For damages incidents partly attributable to the Customer and/or a third party, the Service Provider may be held liable towards the Customer up to a maximum amount, within the limits defined above, of the share caused by the Service Provider’s demonstrated error, to the exclusion of any joint and several liability with the other debtors. This provision applies regardless of whether the claim is brought on a contractual or extra-contractual basis.
8.3. The Customer must inform the Service Provider in writing of any event that may call upon the latter’s liability or of any disadvantage the Customer suffers within the shortest possible time and at the latest within fifteen (15) calendar days from the occurrence of this event or disadvantage, or at least to be counted from the moment the Customer becomes aware of or reasonably could have been aware of this event or disadvantage. This is in order to enable the Service Provider to determine the origin and cause(s) of the damage within a reasonable period. In the event of failure to comply with the written notification, the Service Provider reserves the right to refuse any compensation and it cannot be held liable.
8.4. Under no circumstances shall the Service Provider be liable for (i) indirect, incidental or consequential loss, including but not limited to financial or commercial losses, loss of profit, increase of general expenses, missed savings opportunities, diminished goodwill, damages resulting from business stoppage, damages resulting from claims of customers of the Customer, disruptions in scheduling, loss of expected profit, loss of capital, loss of customers, missed opportunities, loss of information, loss of advantages, or compromising and loss of files resulting from the performance of the present Contract, (ii) damages resulting from error or negligence of the Customer, (iii) compensation of any direct and indirect damages caused by the use of the result of the Services, (iv) compensation of any direct and indirect damages caused in whole or in part by software or hardware supplied or created by third parties, or any other element introduced into the Customer’s business after the signing of the Contract, and (v) all claims of third parties brought against the Customer.
8.5. The limitation of liability as set out in these General Terms & Conditions shall not apply with respect to damages caused by an intentional and/or fraudulent error by the Service Provider.
8.6. In the event that the delivered developments are used for further development or commercialisation, the Customer will hold the Service Provider harmless against any third party damages claims, even if it were established that such originated from the services and developments supplied by the Service Provider.
8.7. The Service Provider is not liable for any claims of intellectual property rights infringement based upon:
(a) use of a modified or old version of any or all of the developments, if the infringement could have been prevented by using the unmodified or last version which the Service Provider has made available; or
(b) information, design, specifications, instructions, software, data or other materials that were not developed by the Service Provider.
8.8. These limitations of liability remain applicable in the event that the Service Provider is informed by the Customer of the existence of a realistic risk of damages. The Parties acknowledge that this constitutes a reasonable spread of the risk.
8.9. The provisions of this article, alongside all other limitations and exclusions of liability specified in these General Terms & Conditions, are stipulated in part for the benefit of the Employees of the Service Provider and its Affiliated Companies.
9. Protection of personal privacy
9.1. Each Party must at all times adhere to its respective obligations under applicable law in regards to the processing of personal data in connection with personal data that is to be processed pursuant to this Contract. The Customer undertakes to refrain from granting the Service Provider and the Consultant access to personal data within the framework of this Contract, except when the performance of the Contract would be impossible without such access. The Customer undertakes in such a case only to grant access to the personal data that are strictly necessary for the execution of the Contract. The Customer remains solely responsible for the determination of the objectives for which the Service Provider processes personal data pursuant to the Contract. For the sake of clarity, the Parties acknowledge that the Customer acts as the party responsible for the data processing, and the Service Provider acts as the processor of the personal data that must be stored, used or otherwise processed for the offices of this Contract, as these terms are defined in the legislation governing the processing of personal data. All costs related to and/or resulting from the application and/or implementation of the legislation with respect to the processing of personal data will be exclusively borne by the Customer.
9.2. The Customer declares that it has obtained all approvals necessary for the use and processing of the personal data transferred to the Service Provider for the purposes of the Contract, and the Customer further warrants that the content, use and/or processing of the Personal Data is not wrongful and does not violate the rights of third parties.
10. Force Majeure
10.1. Neither party is obliged to fulfil any obligation if prevented from doing so by Force Majeure.
10.2. If a situation of Force Majeure lasts longer than sixty (60) calendar days, either Party is entitled to rescind the Contract in writing. In that event, all performances already rendered under the Contract will be settled in proportion to the state of completion, without the Parties owing anything to each other beyond this proportionate compensation.
11.1. The Customer agrees that it will not actively approach the Employees of the Service Provider directly or indirectly with the intention of engaging these Employees, and that this obligation commences as from the start of performance of the Services and continues until twelve (12) months after the end date of the Services and/or termination of the Contract, whichever is later, excepting where agreed otherwise by the parties in writing.
11.2. If the Customer contracts an Employee of the Service Provider or recruits or use the services of any such Employees, whether under an employment relationship, on an independent basis and/or through a company, the Customer shall pay to the Service Provider an amount equivalent to 120 times the day rate defined in the Specific Terms & Conditions. This sum shall be payable on the date on which the Employee is first engaged or on which the Employee’s services are first used.
11.3. The Customer undertakes the obligation to impose the obligations under articles 11.1 and 11.2 of these General Terms & Conditions on the third parties with which it partners and/or contracts. The Customer commits to ensuring that these third parties will not approach any of the Employees of the Service Provider with the purpose of engaging or recruiting these persons.
12. General stipulations
12.1. The present Contract is governed by Belgian law. Application of the Vienna Sales Convention of 11 April 1980 (CISG) is excluded.
12.2. In the event of disputes concerning the implementation and/or interpretation of the present Contract which cannot be resolved amicably, only the Courts of Antwerp (division Antwerp) will be considered competent. Any claim of the Customer relating to the Services provided expires six (6) months after the date on which the Customer becomes aware or reasonably could have become aware of the damages-causing events giving rise to the claim.
12.3. Neither this Contract nor the rights or obligations arising from it may be transferred in whole or in part without the express written consent of both Parties. Without prejudice to the foregoing, the Service Provider is at all times authorised to transfer this Contract or the rights or obligations derived from it, in whole or in part, to an Affiliated Company without requiring the explicit and written consent of the Customer.
12.4. For the performance of the Contract, the Service Provider may call upon the services of subcontractors without requiring the written consent of the Customer in advance.
12.5. The nullity of any provision or part of a provision under this Contract will in no way affect the validity of the remaining portion of the provision or the rest of the provisions and clauses. By mutual agreement, the Parties will make every effort to replace the invalid clause with a valid one with the same, or largely the same, economic impact as the invalid clause had.
12.6. A Party cannot be considered to have waived a right or claim under this Contract or relating to a default of the other Party excepting where this waiver is made explicitly and in writing.
If under application of the preceding paragraph a Party waives rights or claims under this Contract that are derived from continuing breach of Contract or other default of the other Party, this waiver can never be interpreted as waiver of any other right under this Contract or concerning a continuing breach or other default of the other Party, even if the two situations exhibit significant similarities.
12.7. Barring any stipulation to the contrary, all legal remedies provided in the Contract are cumulative and above and beyond (and not in replacement of) any other legal remedies available to the Parties.
12.8. In the event of General Terms & Conditions and the Specific Terms & Conditions, the Specific Terms & Conditions prevail.
12.9. These General Terms & Conditions, together with the Specific Terms & Conditions are a full and complete reflection of the rights and obligations of the Parties and take the place of all previous agreements and proposals, whether oral or in writing. Departures from and additions to this Contract are only valid if agreed between the Parties in writing. The applicability of the Customer’s purchase conditions or any other general conditions are explicitly rejected, even if these conditions state otherwise.
12.10. All notifications, requests and other communication under this Contract (excluding everyday operational communications) shall be in writing by registered letter with proof of receipt or in another conventional method of communication agreed between the parties.
12.11. All provisions of the Contract explicitly identified as extending beyond the termination (including rescission) or expiry of the Contract, as well as all provisions of the Contract the performance of or compliance with which is intended after the termination or expiry of the Contract, shall continue and remain fully in force beyond the termination or expiry of the Contract. Specifically, but not exhaustively, all provisions relating to liability, confidentiality and non-solicitation continue after the termination of the Contract under any and all circumstances.
12.12. Regardless of the nature and value of the juristic act to be demonstrated, the Service Provider may at all times demonstrate said act based on the following additional evidence: copies or reproductions in any form whatsoever (carbon copy, photocopy, microfilm, scan, etc.), via information carrier, fax, telex and email. This evidentiary material has the same basic force as a private instrument drafted in accordance with the provisions of the Belgian Civil Code. In the event a signed copy of the Contract is disclosed by email in a .pdf or .jpeg file or another form of exact copy, the signature included within it shall create a valid and binding obligation on the part of the signer (or the person in the name of whom and on whose account the document is signed) with the same value, force and effect as an original signature.
12.13. The titles and headings in this Contract are solely indicative and do not in any way affect the content or scope of the provisions or the rights and obligations derived therefrom.