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Annex 1 – Co-ëfficiënt Terms & Conditions  

  1. Applicability of these Terms 

1.1.   These Terms apply to all Quotations executed between the Parties and to all Services ordered by the Customer.  

1.2.   Any (general or special) terms and conditions of the Customer are not applicable and are hereby expressly excluded, even if such terms and conditions where not protested by the Consultant. 

1.3.   By signing a Quotation, accepting these Terms and/or by ordering in any way all or any part of the Services, the Customer expressly agrees to be legally bound by these Terms. If you are an Employee of the Customer accepting these Terms on behalf of the Customer, you represent and warrant that (i) you have full legal authority to bind the Customer to these Terms; (ii) you have read and understand the Terms; and (iii) you agree on behalf of the Customer to the Terms. 

2.  Definitions 

2.1.   Capitalized terms used in these Terms shall have the meaning given to them below, unless agreed otherwise in writing: “Agreement” means the contractual relation between the Parties, consisting of these Terms together with the applicable Quotations and any annexes and/or Schedules thereto; “Consultant” means Co-ëfficiënt BV, a company under Belgian law, with registered office at Blokstraat 54, 2500 Lier, Belgium, with company number 0802.547.118, RPR/RPM Antwerp, division Mechelen, hello@co-efficient.eu; “Customer Data” means all information, data or materials belonging to the Customer (with the exclusion of the Consultant’s Intellectual Property Rights and/or data owned by the Consultant) which is provided by the Customer or its Employees to the Consultant or which is otherwise generated by or resulting from the execution of the Agreement; “Customer” means the legal entity that expressly accepts these Terms and/or purchases the Services; “Employees” means the personnel members, personnel members of affiliated companies, independent employees, subcontractors, consultants, and any other natural or legal persons of a Party generally engaged or appointed in its day to day business activities; “Force Majeure” means the situation in which one of the Parties is impeded in its non-monetary obligations under the Agreement, either in whole or in part and temporarily or permanently, beyond the control of the Parties. This includes (but is not limited to): fire, war, terrorist attack, unfavourable weather conditions, force majeure on the part of subcontractors of the Consultant, failures in goods, equipment, software or materials of third parties, government measures, disruption of Internet, data network or telecommunications facilities, unavailability of third-party servers, strike, unavailability of Employees, general transportation problems and electricity outages; “Intellectual Property Rights” means (non-exhaustive list) patents, trademarks, copyrights, rights in software programs (both in object code and source code), design rights, database rights, proprietary rights in know-how, business names, trade names and all rights or forms of protection of a similar nature or having equivalent or similar effect to any of the afore listed which may subsist anywhere in the world, and any other intellectual or industrial property rights in any country and any existing or future applications for or registrations of such rights; “Party(-ies)” means the Consultant and/or the Customer;  “Project” means the totality of the consultancy assignment, Services and cooperation between the Parties as described in a Quotation; “Services” means the consultancy, training and other professional services provided by the Consultant to the Customer pursuant to a Service Request, as described in the relevant Quotation; “Service Request” means a request from the Customer to perform certain Services as described in a Quotation;  “Terms” means the present document titled “Co-ëfficiënt General Terms & Conditions”; “Quotation” means a written document signed by both Parties, regardless of its name, indicating the nature, scope and other specifics of the Services ordered by the Customer and any specific conditions related thereto. 

 

3.  Quotation 

3.1.   For each Project, the Parties shall conclude separate Quotations, detailing the scope of the Project and the modalities (including the applicable fees) of the specific Services to be provided by the Consultant. The Parties are only bound by a Quotation after it is 

executed by a duly authorized representative of both Parties.  

3.2.   Each Quotation shall be governed by these Terms, which shall be incorporated therein by reference. If, at the request of the Customer, the Consultant commences the execution of a Project or the Services prior to the signing of the Quotation, this will be considered an acceptance of these Terms. 

4.  Analysis Phase  

4.1.   The Parties acknowledge that each Project is subject to an analysis phase, meaning the phase during which the Customer and the Consultant shall examine the scope and specific requirements of each potential Project in detail (such as by determining the expectations and needs of the Customer, conducting an analysis of the Customer’s set-up and resources which are in scope of the Project, estimated timeline, Customer dependencies, etc.) in order to understand the external factors that may have an impact on the execution of the Services, which will be conducted in accordance with the modalities set forth in the initial Quotation (the “Analysis Phase”).  

4.2.   The outcome of the Analysis Phase shall be documented in writing and shall form the basis for the Project Quotation. The Parties shall, upon completion of the Analysis Phase, mutually agree on the exact scope of the Project by formalizing this in the relevant Project Quotation. The Parties may, at any time, in accordance with the procedure set forth in clause ‎7, agree to add Services or change the scope of each Project. 

5.  The performance modalities 

5.1.   Upon completion of the Analysis Phase and subject to the payment of the relevant fees, the Customer may at any time submit a Service Request [by sending an email to or submitting a ticket via the Consultant’s service desk], requesting the Consultant to perform the Services set forth in the relevant Quotation. The Consultant shall respond to each Support Request issued by the Customer within a reasonable time thereafter in accordance with its availability.  

5.2.   The Consultant undertakes to execute the Services set forth in a Quotation on behalf of the Customer to the best of its abilities and in accordance with the competence, care, and diligence expected of a professional service provider. The Consultant will execute the Services in complete independence and shall plan its activities as it sees fit (including the right to subcontract its obligations and to reassign any of its designated resources), however, taking into account the commercially reasonable technical instructions and guidelines it receives in a timely manner from the Customer. This independence is an essential element of this Agreement without which the Parties would not have concluded it. In no case shall this Agreement be interpreted as an employment contract between the Consultant (or the person assigned by the Consultant) and the Customer.  

5.3.   Any timeframe for the performance of Services as set out in the relevant Quotation are indicative target dates only unless expressly agreed to be binding in writing. 

5.4.   Upon conclusion of the Analysis Phase, the Customer acknowledges and agrees that the Consultant is fully informed concerning the needs and expectations of the Customer.  

5.5.   To the extent reasonably possible, the Consultant shall report any scheduled interruptions of the performance of the Services (such as short-term illness, leave days of the Consultant, etc.) to the Customer in a timely manner. 

 

5.6.   Unless otherwise specified in the Quotation, the Services are to be performed at the premises of the Customer. The Customer shall grant the Consultant free access to the work environment as required. 

5.7.   The Customer warrants that the work space and facilities will be in compliance with all requirements under applicable law. The Customer indemnifies the Consultant against claims of third parties, including the Employees of the Consultant, who suffered damages in connection with the performance of the Agreement and resulting from the acts or omissions of the Customer or from unsafe situations prior to the start of the Services. 

5.8.   Setup and alteration of the location where the Services will be carried out are at the Customer’s expense, with the Customer being liable for any damages and associated costs incurred by the Consultant as a result of late, incorrect or faulty performance thereof. If without valid reason the Customer cancels a meeting, the Parties shall schedule a face-to-face meeting. If Customer does not cancel a meeting [at least twenty-four (24) hours in advance], unless in case of a Force Majeure Event, the Consultant is entitled to charge the scheduled meeting at 100% of the estimated manhours to be executed. 

5.9.   The Customer acknowledges and agrees that the Services may contain advice and recommendations. Unless explicitly agreed otherwise, the Customer bears full responsibility for the use, interpretation and/or implementation of such advice and recommendations. 

5.10.   The Services and Deliverables (as defined hereunder) (if any), provided by the Consultant will be deemed accepted upon delivery. Partial deliveries are permitted. 

6.  Steering Group 

6.1.   The Parties agree that a Steering Group will meet periodically during the execution of the Project (including during the Analysis Phase). This Steering Group is responsible for managing the Project, making adjustments to the Project assignment and assisting the project team in strategic decision-making. 

6.2.   This Steering Group will consist of at least the following core members: 

  a) an Employee of the Customer; 

  b) a delegated project leader for the Customer; 

  c) a project leader on behalf of the Consultant. 

6.3.   The Steering Group may at any time invite other persons to attend the meetings. 

6.4.  Within the context of the Agreement, only this Steering Group has decision-making power to approve any changes and/or expansions of the Services to be executed under the Project and relevant Quotation, in accordance with the procedure set forth in clause ‎7. To facilitate progress of the Project, both Parties will delegate one person who will have the capacity to make any urgent decisions required in the name of the Customer and the Consultant respectively without consulting with the Steering Group. These persons may also convene meetings of the Steering Group outside of the normal meeting calendar to discuss specific issues and force any decisions that may be required.

 

 

 

7.  Change procedure 

7.1.   All changes and/or extensions to the original specifications and conditions related to the Services or a Quotation and changes to the underlying conditions of the Services or a Quotation (each a “Change”) are subject to the procedure set forth in this clause ‎7. An intended Change is, among other things, a clear change in the project team’s working conditions and changes to the Customer’s used resources (including hardware and software). 

7.2.   Each Party may at any time submit a Change request [by sending an email to [the other members of the Steering Group]], in which event the Steering Group shall promptly set-up a meeting and discuss in good faith the requested Change and any impact such Change may have on the Project and existing Quotations, in accordance with clause ‎6.

 

7.3.   The change procedure entails that the requested Change is described in writing by the Steering Committee, followed by an assessment of the impact of the requested Change on the Project. The Consultant shall, following the meeting of the Steering Committee and within a reasonable time thereafter, draft a new Quotation (including a description of any estimated impact on the pricing and timing on the pending Projects) related to the Change request. For the avoidance of doubt, the Parties shall not be bound by a Change request nor by a Quotation proposed following a Change request, until executed by a duly authorized representative of both Parties. Unless expressly agreed otherwise, all Services provided following an approved Change request, shall be governed by these Terms. 

7.4.   The time spent examining a Change request will be invoiced to the Customer on a time and material basis, in accordance with the Consultant’s then-current rates. The Consultant’s project manager will, to the best of its abilities, determine in advance how many manhours this will require and submit this to the Customer for approval. 

8.  Cooperation obligation 

8.1.   The Parties acknowledge and accept that the success of the Project depends on the timely cooperation between the Parties. The Customer shall at all times promptly grant all reasonable cooperation desired by the Consultant. If the Customer, in the context of such cooperation, engages its own Employees, these Employees must have the necessary knowledge, expertise and experience. The Customer is responsible for the timely provision of the useful and necessary Customer Data and information required for the execution of the Agreement. 

8.2.   The required cooperation on the part of the Customer may be very 

intensive at some points during the Project. The Customer must reserve sufficient staff and resources as requested and required for the execution of the Project. 

8.3.   The Consultant provides the Services within the limits of this Agreement 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 Consultant to fulfil the obligations under this Agreement. The Customer indemnifies the Consultant for all damages resulting from incorrect, late or incomplete provision of information. 

9.  Customer Data 

9.1.   Any Customer Data shall remain the property of the Customer. The Customer hereby grants the Consultant the right to use the Customer Data (in an anonymized manner) during and after termination of this Agreement (including for the performance of its obligations under the Agreement and to continuously improve, analyze and optimize the Services and its service offering). 

9.2.   The Customer is solely liable and responsible for the accuracy and correctness of the Customer Data and warrants to the Consultant that the Customer Data shall not (i) infringe the Intellectual Property Rights or any other rights of any third party; (ii) breach any provisions of any law, statute or regulation, in any jurisdiction; and/or (iii) adversely or negatively affect or reflect the Consultant’s name, reputation or goodwill.  

9.3.   The Customer hereby acknowledges and agrees that the accuracy and quality of the Services and Deliverables (if any), is dependent on the accuracy and correctness of the Customer Data.  

10.Infrastructure 

10.1.   The Customer acknowledges and agrees that the Services shall be executed on the Infrastructure (hereinafter defined) proprietary owned, held by or under the responsibility of the Customer.  

10.2.   The Customer hereby expressly grants the Consultant access to the Customer’s facilities, hardware (including without limitation its printing and computing devices, PCs), networks, data transmittal lines with appropriate communication software environments, systems, tools, software (including third party software), servers, databases and all other resources and infrastructure (the “Infrastructure”) as required to provide the Services during the term of the Agreement.  

10.3.   The Customer hereby acknowledges and agrees that it is solely responsible to, at its own costs, hold, obtain, purchase and maintain the necessary access or user rights to the Infrastructure (from the relevant third party service provider) as necessary for the execution of the Agreement. In particular, the Customer agrees that it must procure sufficient access, user and license rights to the Infrastructure for the Consultant and its engaged Employees as required for the execution of the relevant Project. If the Customer fails to do so, the Consultant shall not be liable for any losses or damages resulting therefrom nor from any delay or failure in the provision of the Services. If and to the extent the Infrastructure is governed by third party license terms, the Customer warrants that it shall adhere to such third party terms. 

10.4.   The Consultant shall not be responsible or held liable for any defects or malfunctioning of the Infrastructure or for any delays or impact such defects or malfunctions may have on the provision of the Services or the accuracy or correctness of any Customer Data or Deliverables (if any). The Consultant is not responsible for examining the accuracy, validity and quality of the Infrastructure. 

11.  Term and Termination 

11.1.   The Agreement shall commence on the Effective Date and continue in effect for two (2) years (hereafter the “Initial Term”). After the Initial Term, the Agreement shall automatically and tacitly be renewed for consecutive periods of one (1) year (each a “Renewed Term”), unless either Party provides a written notice termination to the other Party at least three (3) months before the end of the Initial Term or the then-current Renewed Term. Upon termination of the Agreement, the current Quotations remain in full force and effect for the remaining duration of such Quotations or until full execution of the relevant Project (whichever is the latest), unless expressly agreed otherwise in writing. In such event, these Terms remain in full force and effect for the remaining duration of the Quotations. 

11.2.   Without prejudice to its entitlement to compensation of damages, the Consultant may, at its own discretion, suspend or terminate the Agreement (or any Quotation), with immediate effect, without incurring any liability and judicial intervention and without prejudice to its rights to claim damages and any other rights, remedies and/or claims to which it may be entitled by law, by the simple delivery of a registered letter, in the event: 

  a) the Customer misses any payment deadline and fails to pay 

within thirty (30) days from the date of a written notice of default; 

  b) the Customer refuses to sign, confirm or accept a time sheet or 

any other time accounting system without valid reason; 

  c) the Customer breaches its confidentiality or data protection 

obligations or breaches the Intellectual Property Rights of the Consultant; 

  d) of proof or serious suspicions of fraud committed by the Customer; 

  e) the Customer refuses to provide the requested information or has provided incorrect and/or false information. 

11.3.   Further, either Party may terminate the Agreement (or any Quotation), without incurring any liability or judicial intervention and without prejudice to its rights to damages and any other rights, remedies and/or claim to which it may be entitled under applicable law, if the other Party:  

  a) commits a demonstrated material breach of the Agreement 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 ​4 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; 

or  

  b) the other Party becomes insolvent, is subject to voluntary or involuntary bankruptcy, insolvency or similar proceeding or otherwise liquidates or ceases to do business. 

12.  Consequences of termination 

12.1.   Excepting where the Customer terminates the Agreement based on demonstrated serious error or material failing on the part of the Consultant, the Customer shall promptly compensate the Consultant for all ordered Services and any amounts due up to and including the date of termination.  

12.2.   Upon termination of the Agreement for whatsoever reason,  

  a) the Customer’s right to use the Consultant’s Intellectual 

Property Rights will automatically cease and all licenses granted to the Customer pursuant to the Agreement shall automatically 

terminate;  

  b) each receiving Party will return, within reasonable time of such termination, all Confidential Information of the disclosing Party, 

except as required to comply with any applicable legal or accounting record keeping requirements; 

  c) the provisions of this Agreement that are expressly or implicitly intended to survive termination, shall survive any expiration or termination of this Agreement including without limitation, the provisions relating to Intellectual Property Rights, Confidential Information and limitation of liability. 

13.  Intellectual Property Rights 

13.1.   Except as expressly otherwise provided herein, neither Party will, as a result of this Agreement, acquire any rights, titles, or interests in any Intellectual Property Rights (including any modifications or improvements thereof or derivative works based thereon) owned by a Party that already existed at the Effective Date of this Agreement or which is developed thereafter independently from the other Party’s Intellectual Property Rights and Confidential Information. In particular, the Customer expressly acknowledges that the Consultant exclusively retain(s) all rights, titles, interests vested in and related to the provision of the Services and all Intellectual Property Rights associated therewith (including without limitation all methodologies, processes, methods, underlying logic and semantics, software and systems used and any knowhow already existing or acquired in the execution of the Agreement).  

13.2.   Without prejudice to the foregoing, subject to the terms of the Agreement and upon full payment of all amounts due under the Agreement, the Consultant shall assign the Deliverables (if any) to the Customer. For the purpose of this clause, the “Deliverables” shall mean the reports, studies, graphs and other documents to be provided by the Consultant pursuant to and as further specified in the relevant Quotation. To the extent the Consultant’s Intellectual Property Rights are included in the Deliverable(s), such Intellectual Property Rights vested therein shall not be transferred to the Customer and the Consultant shall grant the Customer a non-transferable, non-assignable, non-exclusive, personal and restricted license, without the right to sublicense, to use the Deliverables together with the Consultant’s Intellectual Property Rights for the Customer’s internal business purposes. 

13.3.   The Consultant shall be entitled to use the ideas, concepts, methodologies, processes and knowhow developed or created in the execution of the Agreement. Nothing in this Agreement shall preclude the Consultant from acquiring, marketing, developing, providing or using for itself or others, services, deliverables or products that have the same or similar functions to the Services and Deliverables provided to the Customer under this Agreement, save to the extent that such use would result in a breach of the Consultant’s confidentiality undertakings under this Agreement. 

14.  Confidentiality 

14.1.   “Confidential Information” is defined as all information of any form whatsoever (oral, written, graphic, electronic, etc.) exchanged between the Parties in the context of the Agreement. 

14.2.   Each Party and its Employees must keep secret and treat as confidential all Confidential Information received from the other Party in the performance of this Agreement. Additionally, the Parties shall not use the Confidential Information for any purpose other than as required for the performance of its rights and obligations under the Agreement. The Parties shall not disclose the Confidential Information to third parties other than its Employees (who have a need-to-know in order to execute their respective obligations under the Agreement) without the prior written consent of the other Party. At a minimum, any information designated as confidential by one of the Parties will be considered as such. 

14.3.Both Parties shall take sufficient precautions to maintain the confidentiality of the Confidential Information and in particular the 

Parties covenant that they shall promptly notify the other Party if they become aware of any breach of confidence and give the other Party all reasonable assistance in connection therewith. 

14.4.   The confidentiality obligation shall continue to exist for a period of five (5) years after termination of this Agreement, regardless of the cause of termination. 

14.5.   The following are not considered to be Confidential Information: 

  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 Agreement; 

 c) information demonstrated to be developed by a Party independently from the Confidential Information and/or Intellectual Property Rights of the other Party and without violating this Agreement; 

  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 applicable law or a judicial or administrative decision or order. In said event the Parties shall cooperate in good faith to ensure the protection of the Confidential Information concerned to the maximum extent permitted by law. 

15.  Protection of personal privacy 

15.1.   Each Party must at all times adhere to its respective obligations under the Belgian and European data protection laws (including Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (“GDPR”) as well as any applicable national implementing or supplementing laws). 

15.2.   The Customer declares that it has the legal right to disclose any personal data it makes available to the Consultant, 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. The Customer shall inform all data subjects about the processing activities executed by the Customer and/or the Consultant in the execution of the Agreement (as applicable) in accordance with applicable law. 

16.  Warranty 

16.1.   The Services and Deliverables (if any) are delivered ‘as is’, and the Consultant makes no representations or warranties, express or implied, of any kind whatsoever (including without limitation, satisfactory quality, non-infringement, accuracy or completeness of data operational criteria or parameters provided by the Customer, and/or the suitability or marketability of the Services for the performance of specific tasks envisioned by the Customer). In the event and to the extent the Consultant provides Services in relation to (third party) Infrastructure, the Consultant disclaims all warranties and liability in relation thereto. 

17.  The fee and payment modalities 

17.1.   The Customer shall pay the amounts and fees set forth in the relevant Quotation.  

17.2.   Prices set forth in the Quotation are exclusive of VAT, charges and taxes, excise duties and any other levies imposed or to be imposed. All these taxes and duties will be the sole financial responsibility of the Customer. Unless otherwise stated in the relevant Quotation, the price set forth therein, does not include travel times and/or incidental expenses and all other reasonable costs. All these costs are to be borne by the Customer and shall be reimbursed by the Customer upon the submission of proper and adequate evidencing documents. 

17.3.   Unless otherwise set forth in the relevant Quotation, the Services shall be provided in accordance with the Service package ordered by the Customer. Depending on the Service package purchased, the Quotation shall specify a [monthly or yearly] amount of manhours available for the Services to be executed in the course of a Project (the “Service Credits ”). The Customer may at any time submit a Service Request for the execution of the Services described in the relevant Quotation for which it can use its Service Credits. The number of hours performed by the Consultant in the execution of the Services Request shall be deduced from the Service Credits ordered by the Customer. Any unused Service Credits shall not be refunded or transferred [to the next month or contract year]. The Customer may purchase additional Service Credits at any time at the Consultant’s then-current rates. In such case the Parties will sign a new Quotation and the additional Service Credits shall be available immediately. The fees corresponding with the purchased Service Credits, shall be paid [annually upfront]. 

17.4.   Unless otherwise agreed in the Quotation, a minimum intervention will 

be at least four (4) manhours.  

17.5.   The Consultant 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 manhours per week. Where the work schedule is more than 38 manhours per week, the following increases (non-cumulative) will be applied to the rates corresponding with the Service Credits purchased by the Customer in the relevant Quotation: 

  a) performance > 38 hours/week: + 50%; 

  b) performance > 7.6 hours/day: + 50%; 

  c) performance between 10 PM and 7 AM: + 100%; 

  d) performance on Saturday: + 50%; 

  e) performance on Sunday or public holiday: + 100%. 

17.6.   Barring an agreement in writing between the Parties to the contrary, the Consultant will have its performance hours signed off (not to be withhold, unless on the basis of demonstrated and well-founded objective reasons) by the Customer in the form of timesheets or some other timekeeping system agreed between the Parties.  

17.7.   The Consultant reserves the right to adjust its prices, rates and fees annually on the first (1st) of January based on the following formula: New price = Base price * (0.2 + 0.8 * New index (Initial index)). For which the following definitions apply: 

  a) New price: the revised price, fee or rate; 

  b) Base price: the initial price, fee or rate as set forth in the Quotation; 

  c) Initial index: the index published by Agoria DIGITAL “national average reference salary in the digital and technological industry” on the Effective Date of the Agreement (or, if this index is no longer published, the index replacing it or failing such index by another index reflecting the increases of labor cost (in the digital or technological industry)); 

  d) New index: the index published by Agoria “national average salary in the digital and technological industry” at the moment of revision. 

17.8.   All invoices issued pursuant to this Agreement, are payable thirty (30) calendar days after the date of invoice, unless specified otherwise in the relevant Quotation. All payment obligations are final, non-cancellable and all amounts paid are non-refundable except as otherwise set forth in the Agreement. 

17.9.   The absence of a protest of an invoice in writing (accompanied by well-reasoned and founded objectives) within eight (8) business days from the invoice date, constitutes irrevocable acceptance of the invoice. 

 

17.10.   In the event of late payment of an invoice by the Customer, the Consultant can, to the maximum extent permitted under applicable law, at its own discretion make use of one or more of the following available options without prior notice or warning letter: 

  a) the amount due is automatically increased with interests at the rate pursuant to the Belgian Act on combating late payment of 2 August 2002 increased by three percent (3%), from its due date until full payment of the amount due is received; 

  b) the Consultant is entitled to a lump sum indemnity of ten percent (10%) of the unpaid invoice as compensation for the extrajudicial collection of the invoice without prejudice to Consultant’s right to claim a higher indemnity should the actual damage suffered exceed the aforementioned lump sum indemnity;  

  c) all amounts which are outstanding but not yet due by the Customer become immediately due; and 

  d) the Consultant is entitled to suspend any of its obligations (including the provision of the Services), without incurring any liability, until full payment of the amount due has been received.  

18.  Relationship between the parties 

18.1.   The Consultant will enjoy complete freedom and independence in the performance of the Agreement. There is no hierarchical relationship between either the Consultant and the Customer, or the Customer and Employees deployed by the Consultant. Under no circumstances does the Consultant transfer any employer’s authority to the Customer. 

19.  Liability 

19.1.   The liability that the Consultant may incur is derived from a best effort obligation. Insofar as maximally permitted by mandatory applicable law, the total liability of the Consultant arising out of or in connection with the Agreement (whether in contract, tort (including negligence) or otherwise) for all causes or actions, is per event (or series of connected events) limited to the reimbursement of direct damages up to a maximum of the fees (excluding expenses and tax) paid by the Customer under the applicable Quotation during the twelve (12) calendar months preceding the event giving rise to the damages.  

19.2.   Under no circumstances shall the Consultant 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 or data, loss of advantages, reputational damages or compromising and loss of files resulting from the performance of the present Contract, (ii) damages resulting from error or negligence of the Customer,  and (iii) compensation of any direct and indirect damages caused in whole or in part by the Infrastructure or Services supplied by third parties. 

 

19.3.   The provisions of this clause, alongside all other limitations and exclusions of liability specified in the Agreement shall operate to the benefit of the Employees of the Consultant and its affiliated companies to the same extent as such provisions operate to the Consultant’s benefit. 

19.4.   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.  

19.5.   The Consultant can never be held liable for viruses in the Customer’s system and the consequences thereof. The Customer at all times bears the responsibility for its existing Infrastructure (including, but not limited to: monitoring and security procedures, adequate system management, etc.). 

20.  Force Majeure 

20.1.   Neither Party is obliged to fulfil or shall be hold liable for any failure to fulfil any non-monetary obligation if prevented from doing so by Force Majeure. If a situation of Force Majeure lasts longer than sixty (60) calendar days, either Party is entitled to terminate the Agreement. 

21.  General stipulations 

21.1.   Applicable law and competent jurisdiction.

The present Agreement is governed by Belgian law, without applicability of its conflict of law rules. Application of the Vienna Sales Convention of 11 April 1980 (CISG) is excluded. In the event of disputes which cannot be resolved amicably, only the Courts of Antwerp (division Mechelen) will be competent. 

21.2.   (Non) assignment.

Neither this Agreement nor the rights or obligations arising from it may be transferred in whole or in part by the Customer without the express written consent of the Consultant. The Consultant is at all times authorized to transfer and assign this Agreement or the rights or obligations derived from it, in whole or in part, to an affiliated company or third party without requiring the consent of the Customer.For the performance of the Agreement, the Consultant may call upon the services of subcontractors without requiring the prior written consent of the Customer. 

 

21.3.   Severability.

The nullity of any provision or part of a provision under this Agreement 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. A Party cannot be considered to have waived a right or claim under this Agreement or relating to a default of the other Party except where this waiver is made explicitly and in writing, signed by a duly authorized representative of said Party.  

21.4.   Waiver.

If under application of the preceding paragraph a Party waives rights or claims under this Agreement that are derived from continuing breach of Agreement or other default of the other Party, this waiver can never be interpreted as waiver of any other right under this Agreement or concerning a continuing breach or other default of the other Party, even if the two situations exhibit significant similarities. 

21.5.   Entire Agreement.

These Terms, together with any Quotations and any annexes and/or schedules thereto, are a full and complete reflection of the rights and obligations of the Parties, constitute the entire agreement between the Parties with respect to the subject matter hereof and replace all previous agreements and proposals between the Parties, whether oral or in writing.  

21.6.   Deviations from these Terms.

Departures from and additions to these Terms are only valid if agreed between the Parties in writing. In the event of any contradiction between these Terms and any Quotation, these Terms will take precedence unless expressly agreed otherwise in writing. 

21.7.   Notices.

Any notice under the Agreement shall in first instance be given 

by electronic mail to the email addresses specified in the Quotation. All 

notices given by electronic mail, shall only be valid upon confirmation of 

receipt expressly given by electronic mail by the receiving Party. Notices 

of termination or of default cannot be given by electronic mail and are to 

be sent by certified or registered mail to an authorized representative of 

the other Party.  

21.8.   Titles.

The titles and headings in this Agreement are solely indicative and do not in any way affect the content or scope of the provisions or the rights and obligations derived therefrom. 

21.9.   Publicity.

The Consultant shall have the right to use any trademarks or other marks of the Customer (including the Customer’s corporate name) for marketing or promotion purposes, such as (but not limited hereto) Customer references on Consultant’ website and during sales presentations 

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