The following concepts have the meaning described in this article (when written with a capital letter) :
All references in this Agreement to the singular shall include the plural where applicable (and vice versa).
2. SCOPE OF APPLICATION
2.1 Unless explicitly agreed otherwise in writing, any and all offering, sales and performance of all Services by UgenTec shall be governed by the present GT&C.
2.2 For the avoidance of doubt, these GT&C apply to the entire legal relationship between Parties, including individual orders or contracts for specific services. Deviations, additions or modifications of these GT&C shall not be effective unless expressly agreed in writing between the Parties.
2.3 The Customer accepts that only the following norms apply to all legal relationships between UgenTec and the Customer, both current and future (in descending ranking order, the next in the absence or by implication of the previous one): (1) specific terms and conditions agreed between Parties; (2) the Agreement including the GT&C; (3) these GT&C and (4) Belgian law.
Any other provisions and/or conditions, such as among others the general and/or special terms of the Customer are not applicable and are explicitly rejected by UgenTec. Other conditions or stipulations mentioned on forms or documents issued by the Customer (including but not limited to their GT&C), are not applicable unless expressly agreed in writing by UgenTec. In the event that explicit preference is given in writing to the terms and conditions of the Customer or to any special agreement whatsoever, the following terms and conditions shall remain valid in a supplementary way.
2.4 By signing the Purchase Order and/or Agreement, the Customer declares to have taken note of the contents of GT&C and accepts these GT&C.
2.5 UgenTec reserves the right to amend its GT&C at any time. New or amended GT&C shall apply from the thirtieth (30th) day after they were made known to Customer. In the absence of any remarks within this stipulated period the Customer shall be deemed to have accepted the amended terms - tacitly - and the new or amended GT&C shall be deemed to have entered into force.
2.6 The Customer declares that they know and understand the meaning of all technical terms used in these GT&C, as well as any possible additions to them and those used in the offer and/or order confirmation and/or other legal documents exchanged between them.
3. RELATIONSHIP BETWEEN PARTNERS
3.1 Neither Party hereto shall have the power or authority to bind, commit or oblige the other Party in any manner whatsoever without the other Party’s prior written consent or to use the other Party’s name in any way not specifically authorized by this Agreement. No representations of either Party shall be binding upon the other Party, without the other Party’s consent.
4. PROPOSALS AND PURCHASE ORDERS
4.1 Unless stated otherwise in writing, all proposals and quotations of UgenTec, either verbal or in writing: (i) are non-binding, (ii) merely provide an indication of the Services and the fees, and (iii) shall be subject to further negotiations between UgenTec and the Customer. During these negotiations, the proposal or quotation shall continuously evolve. Any changes to a proposal or quotation renders the previous version null and void. UgenTec may alter or withdraw its offer or proposal at any time whatsoever.
4.2 A contract is only concluded if an order of the Customer has been expressly accepted by UgenTec and all documents pertaining to the contract have been duly signed by parties involved.
4.3 The qualities, capacities and other details that are included in websites, catalogues, advertisements, depictions, and other commercial documents remitted by UgenTec are only meant to be approximations. These details only bind UgenTec insofar as this is explicitly stated in writing.
5.1 All prices exclude VAT and other taxes and charges and are, except as provided otherwise, expressed in EUR.
5.2 The price is as stated in the Proposal and/or purchase order and/or agreed upon price lists, to the extent applicable.
5.3 In no event shall prices confirmed by UgenTec for one order/proposal be binding for subsequent orders, unless it concerns orders within a larger framework agreement.
5.4 The prices are subject to annual increase in line with the European harmonised index of consumer prices (HICP).
6.1 In the event of the cancellation of the Agreement by the Customer before the start of the Term (without this being due to a shortcoming of UgenTec), UgenTec reserves the right to charge the Services already provided (incl. incurred costs).
7.1 All obligations of UgenTec regarding its Services are to be considered best-effort obligations and do not constitute in any way an obligation of result. Hence, UgenTec shall always provide the Services with due diligence, with appropriate care and in good faith, and shall carry out the Services to the best of its understanding, skill, insight and ability, as reasonably expected of a professional experienced in services of comparable scope, complexity and size, i.e. in line with industry standards.
7.2 The Services are provided to the Customer “AS IS”, i.e. in accordance with its specifics of which a copy can be requested at all times. The Services are provided without any explicit or implicit guarantees of any nature, express or implied, including – without being limited thereto – the warranties of accuracy, correctness, reliability, recency, fitness for a particular purpose, title and non-infringement or result of use.
7.3 In case cost savings are calculated by UgenTec, those calculations are provided for information purposes only. The Customer cannot derive rights from these calculations, nor shall UgenTec be liable if the estimated cost savings are not realized by the Customer.
7.4 UGENTEC grants the Customer a personal, limited, non-exclusive, non-assignable and non-transferable access and use right to the Services, subject to correct and timely payment of the applicable fees described in the Agreement. Further, the Customer is entitled to access and use the Services in accordance with the DPA (Chapter II) and/or SLA (Chapter III) , and:
b) shall use its best endeavors to prevent or terminate any unauthorized access, illegal use and/or incompatible use of the Services. If the Customer discovers such unauthorized access and/or use, it shall notify UgenTec immediately, which is entitled to take all necessary or useful measures to remedy such access and/or use
7.6 UgenTec shall provide the Customer with training, technical information and after sale services with respect to UgenTec-Platform as far as UgenTec deems necessary for the Customer to fulfill his obligations under the Agreement, which may include:
a) consulting opinions on the technical questions regarding UgenTec-Platform;
b) technical support as it pertains to UgenTec-Platform through email or an on-line portal and at UgenTec’s reasonable decision, through telephone consultation or on-site;
c) other related technical support, training, consultancy and services for the Customer according to the provisions of this Agreement.
These services will also be provided on a best effort basis. If an issue arises that is outside the scope of this Agreement, the services will be charged on a time and materials basis, unless otherwise agreed in writing between the Parties. If on-site services (i.e. installation, setup, troubleshooting and operational support) are requested and/or performed by UgenTec, the services will be provided on terms and conditions to be agreed upon in writing by the Parties. UgenTec will at its own discretion determine the methods, details and means of performing the services described above.
7.7 The Customer shall for the performance of the Agreement appoint well-instructed and well-educated employees (or contractors) and will provide sufficient training to said employees (or contractors) with regard to UgenTec-Platform in order to enable them to perform the obligations under this Agreement adequately.
7.8 Whenever the Customer uses promotional or marketing materials from UgenTec, it shall at all times use those materials that are most recent according to UgenTec’s marketing campaigns and guidelines and at UgenTec’s request provide to it copies of its sales tools regarding UgenTec-Platform.
7.9 UgenTec shall provide the Customer and End Users with updates and upgrades in accordance with the applicable SLA. UgenTec reserves the right to cease the support of other versions than the most recent version of UgenTec-Platform that was made available, and this, without prior notice and without any right of recourse for the Customer with regard to UgenTec.
8. BILLING AND PAYMENT
8.1 By ordering the Services, the Customer agrees to electronic invoicing by UgenTec. In case of any specific requirements regarding the way of invoicing, this must be made known to UgenTec in writing.
8.2 UgenTec's invoices are payable to UgenTec's designated bank account at the latest on the due date indicated on the respective order or in the relevant invoices. If no due date is mentioned, the invoice must be settled within a period of thirty (30) calendar days from the date of the invoice.
8.3 The invoice has been settled when the complete amount stated on the invoice has been received on UgenTec's designated bank account as indicated on the front of the invoice.
8.4 All invoices from UgenTec are to be paid in the indicated currency. Unless provided otherwise, the price is expressed in EUR. When the payment is done in a different currency, the conversion will be calculated with regards to the highest rate, either at the rate of the invoice date or the date of payment. All bank and exchange costs connected to the collection of the amount will be charged to the Customer. Representatives are not authorized to receive payments.
8.5 Invoices that are not disputed by registered letter within eight (8) days after their issuing will be considered to have been fully accepted. Such complaints do not release the Customer from his payment obligations. In the event of such dispute, the Client will pay the undisputed amount and the Parties will use good faith efforts to reconcile the disputed amounts as soon as possible.
8.6 Acceptance of partial payment is subject to reservation of all rights and will be charged in the following order: (1) interest, (2) principal amounts;
8.7 Any use of promissory notes, cheques or permission to draw a bill to cover the agreed upon price shall never be regarded as a renewal of the debt of the original invoice, nor will it limit or alter any 'right of retention', agreement or territorial jurisdiction.
8.8 Delays in payment by the Customer of (certain advances on) the price may give rise to a proportionate delay in the delivery term.
8.9 If the Customer fails to pay in full any invoice by the due date, or fails to pay in full any other payment due to UgenTec under any agreement between Parties and/or these GT&C by the due date for payment, then the Customer shall pay interest on the overdue amount at the legal rate for late payments in commercial transactions in Belgium. Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount. The Customer shall pay the interest together with the overdue amount.
8.10 Late, incomplete or non-payment of one expired invoice will cause all other invoices even those that have not fallen due, issued by UgenTec, as well as those for which a particular instalment term has been agreed on, to become immediately payable, without previous notice of default. Interest for late payment is due as from the moment that the non-expired invoices become payable.
8.11 If the Customer has not complied with a payment condition (or other obligation) and/or if the Customer shows signs of insolvency, UgenTec is entitled to suspend or postpone its Services in connection with the present Agreement as well as all other agreements between the Parties. UgenTec reserves the right to suspend delivery of Services until the Customer's credit is back within the agreed limits or until the Customer complies with such payment condition (or other obligation).
8.12 In the event of late payment, UgenTec is entitled to demand the dissolution of the Agreement, to proceed to extrajudicial dissolution (without prior notice of default being required), or according to UgenTec’s choice to request the enforced implementation of the Agreement, all without prejudice to UgenTec’s right to compensation by (early) termination of the agreement. This damage will be fixed at a lump sum of 75% of the remaining amount without prejudice to UgenTec’s right to prove and claim higher compensation.
9.1 Only the Customer is responsible for the use the Services by itself or on its behalf. Where UgenTec merely provides the Services in itself, the effective and actual use of the Services will be always be at the Customer’s own risk and responsibility.
9.2 Customer alone assumes the responsibility for the use made of the Services by its End-Users.
9.3 UgenTec is not responsible for the assay-related aspects of the content of the Assays for the UgenTec-Platform, nor for any unlawful use of the UgenTec trademarks, any unlawful use of the UgenTec-Platform, the Assays for the UgenTec-Platform and/or the elements they contain by the Customer and/or End User(s).
9.4 The Customer and/or End User(s) shall at all times use the Services, UgenTec trademarks, the UgenTec-Platform, Assays for the UgenTec-Platform and/or the elements they contain at their own risk and responsibility, taking into account that
(1) the Assay Plug Ins are based upon the Assays and Assay Information (not under the property nor control of UgenTec), and (2) an error margin needs to be interpreted in line with the applicable balanced accuracy.
9.5 Whereas UgenTec shall take all reasonable measures to secure its Services from unauthorized access, hacking, viruses, etc. and notwithstanding the terms of the SLA (Chapter III), UgenTec, its licensors and providers make no representation, warranty or condition that:
a) the Services will be compatible with the devices and related equipment and software of the Customer;
b) the Services will be available or will function without interruption or will be free of errors or that any errors will be corrected;
c) the Services will meet the requirements of the Customer;
d) the information contained in the Services will be accurate, complete, sequential or timely;
e) certain or any results may be obtained through the use of the Services;
f) the use of the Services will be free of viruses, Trojan horses, worms or other destructive or disruptive components.
9.6 The Customer is solely and exclusively responsible for obtaining, configuring and maintaining all computer hardware, software, and other equipment and services necessary for his use of Services. The Customer and End Users shall be solely and exclusively responsible (1) to test the link between the UgenTec-Platform and the computer system before the first effective analysis is performed; and, (2) to validate every analysis performed through the use of the UgenTec-Platform. UgenTec can under no circumstances be held liable for any damages, whether incurred by the Customer, its End Users or by any third party following the inaccuracy, non or wrong validation of the analysis.
10.1 The Services are provided in accordance with the terms and conditions specified in the (software) specifications and/or the SLA (Chapter III).
10.2 Defects in the UgenTec-Platform must be notified in writing promptly (and ultimately within thirty (30) calendar days following the day the defect has or reasonably should have come to the Customer’s notice). Any notice of defects must be put in writing clearly detailing all errors.
UgenTec shall be given reasonable opportunity to investigate all claims regarding defects and will then use its best endeavors to timely correct such defects. UgenTec cannot be held liable for the use of the UgenTec-Platform during the period in which the defect was or reasonably should have been known to the Customer but was not properly communicated to UgenTec.
After communication of the defect to UgenTec, UgenTec will as soon as reasonably possible inform the Customer about possible risks in the use of UgenTec-Platform and may suspend the use of such UgenTec-Platform.
11. LIABILITY AND IDEMNIFICATION
11.1 UgenTec’s liability shall always be assessed in the light of the best efforts obligation for the Services to which UgenTec has committed. In the case of inadequate Services, UgenTec’s liability is limited – at the option and discretion of UgenTec – to the (renewed) performance of the missing or inadequate Services. If the (renewed) provision of the Services is not (or no longer) possible or reasonable, the Customer is entitled to compensation in lieu of the damage suffered.
11.2 Whereas this article should not be construed to limit UgenTec’s liability in case of fraud, willful misconduct or negligence, UgenTec’s liability is nevertheless limited to what is imperatively imposed on it by the applicable law and is under all circumstances limited to the lowest of the following amounts:
a) the amount invoiced by UgenTec and paid to UgenTec over the last 6 months; and
b) 1 (one) million euro.
11.3 UgenTec will under no circumstances be held liable for:
a) any indirect and consequential damages (including – without being limited thereto – loss of profits, loss of savings, loss of revenue, loss caused by business interruption, damage to third parties),
b) damages resulting from incorrect or inadequate use of the Services
c) damages resulting from non-compliance by the Customer with statutory and/or other obligations
d) Damage resulting from the defaults in network communications, devices or infrastructure belonging to Customer;
e) Damage and/or claims from the Data Subject based on the use of the Services by the Customer in a way incompatible with the rights of the Data Subject (such as but not limited to privacy legislation);
f) Defects that are caused directly or indirectly by an act of the Customer or a third party, regardless of whether they were caused by a fault, negligence or carelessness;
g) Damage caused by incorrect, unreliable, incomplete or late input from the Customer with regard to: the data, information, instructions, etc. needed for the performance of the UGENTEC Services (such as objectives, specifications, features, applications, etc.);
h) Damage caused by the further use or application by the Customer after a problem has been found;
i) Damages resulting from the Customer’s failure to comply with his obligations under the Agreement or respective licenses, and among others – without being limited thereto – to retrieve and verify all required and useful information, nor for any damages resulting from incorrect and/or incomplete information that was provided to the Customer by any third party or for any damages resulting from incorrect or inadequate Assays or Assay results
j) Damages suffered by the Customer and/or any third party as a result of any failure or refusal by UgenTec and/or its licensors to give effect to, or for any failure or delay by UgenTec in receiving, accessing, processing or accepting any communication sent to UgenTec or for any loss or damages suffered as a result of the operational failure, malfunction, interruption, change, amendment or withdrawal of the Services.
k) Damage caused by force majeure or hardship in accordance with the provisions of ARTICLE 14.
11.4 UgenTec is never obliged to pay substitute or additional damages except if and insofar as the damage suffered was inflicted intentionally or by the gross negligence of UgenTec or its own employees. In that case UgenTec liability for loss of profits, consequential or indirect damages is, however, at all times excluded, except in the case of intention on the part of UgenTec itself.
11.5 The Customer shall indemnify UgenTec and hold it harmless from and against any and all claims and procedures, including claims and procedures initiated by any other third parties, that might arise or result from any action or omission by the Customer, in violation of the Agreement, the GT&C and/or any other (statutory) obligations of the Customer. Customer will hold UgenTec harmless against all claims from third parties arising from the incorrect or unlawful use of the Services. It will cover all damages such as compensations or legal costs (including reasonable lawyer’s fees) providing that UgenTec has informed the Customer immediately of any claim arising from that matter. UgenTec shall not enter into any settlement and shall not acknowledge any liability in a matter for which indemnification is sought from the Customer without the Customer's prior written consent.
12. INTELLECTUAL PROPERTY
12.1 Nothing in these GT&C is intended or shall be deemed or implied to constitute a sale or assignment of the Intellectual Property Rights of UgenTec, regarding but not limited to the UgenTec trademarks, the UgenTec-Platform, Assay Plug Ins or any elements they contain by UgenTec.
12.2 The UgenTec trademarks, the UgenTec-Platform, FastFinder, the Assay Plug Ins and all elements they contain are, remain and become property of UgenTec and/or its licensors and are protected by the Intellectual Property Rights of UgenTec and/or its licensors.
12.3 UgenTec and/or its licensors shall be the sole and exclusive owner of all the Intellectual Property Rights regarding all new developments, improvements and information related to or in the field of the Intellectual Property Rights of the UgenTec trademarks, the UgenTec-Platform, FastFinder, the Assay Plug Ins and all elements they contain.
12.4 The Customer explicitly acknowledges that UgenTec shall be the sole and exclusive owner of any and all Intellectual Property Rights in the Assay Plug Ins or any part thereof, now or in the future, including any variations, improvements, modifications and enhancements thereto and that UgenTec may exercise any and all of these rights in any way whatsoever without the Customer’s approval.
12.5 The Assays and Assay Information and all elements they contain are and remain property of the Customer and/or his licensors and are protected by the Intellectual Property Rights of the Customer and/or his licensors.
12.6 The Customer and/or his licensors shall be the sole and exclusive owner of all the Intellectual Property Rights regarding all new developments, improvements and information related to or in the field of the Intellectual Property Rights of the Assays and Assay Information.
12.7 Both Parties guarantee towards each other that to the best their knowledge, the data, products and services they supply do not infringe third party Intellectual Property Rights or other rights and that they will take all reasonable measures to prevent such infringements.
12.8 Both Parties hereby recognize the validity of the other Party’s Intellectual Property Rights as expressly mentioned under present article and shall refrain from denying, challenging or attacking such validity and from assisting any other party in denying, challenging or attacking such validity by furnishing information or advice or otherwise.
12.9 In case any third party denies, challenges or attacks the validity of any other Party’s Intellectual Property Rights as expressly mentioned under this article, the Party becoming aware of this shall inform the other Party without any delay.
12.10 The Customer hereby grants UgenTec as of the application of the present GT&C a non-exclusive and non-transferrable right to use the Assay Information for the creation and improvement of the Assay Plug In.
12.11 UgenTec hereby grants the Customer as of the application of the present GT&C a non-exclusive, non-transferrable and revocable right to use the UgenTec trademarks to refer to UgenTec and its products and activities for the promotion of the UgenTec Platform, FastFinder, and Assays for the UgenTec-Platform, in accordance with these GT&C. This without prejudice to UgenTec’s ability to immediately terminate any use of the UgenTec trademarks at any time upon first request.
12.12 The Customer is explicitly prohibited:
a) to modify, adapt, make error corrections to, create derivative works of, distribute, duplicate, copy, display, send, publish, sell, assign, lease, pledge, loan, rent, deliver or otherwise transfer (the Intellectual Property Rights of) the UgenTec trademarks, the UgenTec Platform, FastFinder, Assay Plug Ins and the elements they contain, or permit third parties to do so;
b) to allow access to the (Intellectual Property Rights of the) the UgenTec-Platform, FastFinder, Assay Plug Ins and the elements they contain to any unauthorized parties, irrespective of whether such access is provided with or without any direct or indirect consideration;
c) to use the (Intellectual Property Rights of the) UgenTec trademarks, the UgenTec-Platform, FastFinder, Assay Plug Ins and the elements they contain for illegal purposes;
d) to use the (Intellectual Property Rights of the) UgenTec trademarks, the UgenTec-Platform, FastFinder, Assay Plug Ins and the elements they contain in any manner that might prejudice UgenTec’s, its licensors’ and/or any other party’s rights;
e) to use any errors in the (Intellectual Property Rights of the) UgenTec trademarks, the UgenTec-Platform, FastFinder, Assay Plug Ins and the elements they contain – whether or not such errors are known to UgenTec and/or its licensors – to its own advantage or to the advantage of any third parties;
f) to decompile, disassemble or reverse engineer the UgenTec-Platform, FastFinder, Assay Plug Ins and the elements they contain;
g) to use the UgenTec trademarks, the UgenTec-Platform, FastFinder, Assay Plug Ins and the elements they contain beyond the applicable license period;
h) to remove, obscure or fail to reproduce any copyright, trademark or other proprietary rights notice contained in the UgenTec trademarks, the UgenTec-Platform, FastFinder, Assay Plug Ins and the elements they contain.
12.13 In the event a Party detects a (potential) error or misstatement in the (Intellectual Property Rights of the) UgenTec trademarks, UgenTec-Platform, FastFinder, Assay Plug Ins or any elements they contain, respectively the Assays and/or Assay Information, it shall immediately inform UgenTec, respectively the Customer thereof in writing.
12.14 In the event a Party detects a potential infringement of the other Party’s and/or its licensors’ Intellectual Property Rights, it shall immediately inform such Party thereof in writing.
12.15 The Customer is not authorized to provide sub-licenses or other rights to third parties regarding the user rights it receives from UgenTec.
12.16 Notwithstanding any right granted to the Customer in accordance with article 12.11, either Party can use the other Party’s logo and/or name for the purpose of among others – without being limited thereto – general information, advertising, publication on their respective websites, publication in flyers or folders, etc., only if the explicit written consent of the other Party has been obtained with regard to the specific purpose.
13. CONFIDENTIALITY AND NON-SOLLICITATION
13.1 All Confidential Information exchanged between Parties prior to entering into an agreement as well as during the Agreement shall be considered confidential and be treated by each Party with the utmost secrecy and thus more specifically the recipient shall:
a) Solely use the Confidential Information for its own account and under the utmost secrecy;
b) Not use, reproduce, or allocate the Confidential Information in any manner or for any other purpose than the (possible) cooperation between Parties;
c) Not engage in, nor authorize others to engage in, the reverse engineering, disassembly or the decompilation of any of the Confidential Information;
d) Not derive any commercial benefit from the Confidential Information;
e) Not divulge, disclose or make the Confidential Information, of which it has knowledge, available to any third party, without the express written consent of the disclosing Party;
f) Disclose such Confidential Information only to those employees who need to know such information within the framework of the (possible) cooperation between parties, and the recipient certifies and warrants that these employees have previously agreed, as a condition to employment, to be bound by terms and conditions substantially similar to provisions applicable to the recipient under these GT&C.
13.2 The obligations, as determined in the previous paragraph, are not applicable to the following information:
a) Information, which is publicly available, publicly spread and/or known by the general public at the time of its communication;
b) Information which is obtained in a lawful manner by the recipient on a non-confidential basis from any party other than the disclosing Party, whereby such third party is at its turn not bound by any confidentiality agreement with the disclosing party;
c) Information which disclosure/announcement is required by law or by a court or other government decision (of any kind). In such case the recipient shall, prior to any disclosure/announcement discuss the scope and manner of such disclosure/announcement with the disclosing Party.
13.3 This confidentiality obligation applies during the course of the Agreement between Parties and will continue to exist for a period of five (5) years starting from the termination of the Agreement for any reason whatsoever.
13.4 The disclosing Party shall remain at any moment the sole owner of its Confidential Information. Except as expressly set forth herein, nothing in these GT&C or the relationship between Parties shall grant to the recipient any rights to or interest in the Confidential Information, and no implied licenses are granted by these GT&C.
13.5 This confidentiality obligation shall, however, in no event imply that UgenTec shall not be entitled to use and/or commercialize any ideas, input, feedback received from the Customer, which may serve to improve and/or expand its products and/or services.
13.6 Both Parties will take reasonable measures to ensure that their directors, employees and assignees will respect this obligation of confidentiality.
13.7 Without prejudice to the foregoing, Customer acknowledges that in the event a confidentiality agreement (or similar agreement with regards to its subject) is signed between Parties, such confidentiality agreement shall prevail.
13.8 The Customer undertakes not to directly or indirectly solicit the hire of any person employed by UgenTec, or who has concluded a contract for the provision of services with UgenTec during the term of the Agreement. The Customer undertakes to keep such commitment up to one (1) year after termination of the Agreement.
13.9 The Customer acknowledges that the provisions of this article are reasonable, fair and necessary to secure the legitimate interests of UgenTec In case where and insofar as any of the aforesaid under this article is deemed to exceed the limitations concerning time or any other limitation provided by the applicable law, such provision shall not be null and void, but will be amended by a provision that is in line with the maximum that is allowed under the applicable law.
13.10 If the Customer violates the obligations in this article, UgenTec shall be entitled to claim a fixed compensation of twenty five thousand euro (€ 25,000) per breach – which shall be increased with five hundred euro (€ 500,00) per day the infringement continues – without prejudice of the right of UgenTec to claim a higher compensation for the actual suffered damage - provided that the existence and extent of the damage can be proved.
14. FORCE MAJEURE AND HARDSHIP
14.1 UgenTec is not liable for any shortcoming in the performance of any obligation caused by force majeure.
14.2 Cases of force majeure or hardship give UgenTec the right, at UgenTec’s discretion, to either (i) temporarily suspend the performance of its obligations; (ii) review the contractual terms (including those with regard to timeframes, completion deadlines and fees), or; (iii) terminate the Agreement by simple written notification to the Customer, without UgenTec being liable for any damages.
14.3 By force majeure is understood as an unforeseeable event beyond control of the affected Party that renders performance of the relevant obligation impossible, and can include, among others – without being limited thereto: unavailability and/or scarcity of certain materials, exceptional weather conditions, labour troubles, strikes or lockouts or interruption, mobilisation, wars, disease or accidents, pandemics that occur after signing of the Agreement, communication and information technology breakdowns, government measures, export bans, delays in deliveries, transport and/or travel obstacles, including lack or withdrawal of transport facilities, export obstacles, import obstacles, breakdowns, war, civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist attacks, terror safety regulations, government sanction, blockage, embargo, riot, crime, fire, explosion, act of God (events such as natural disaster, etc.), etc.
14.4 A situation of force majeure that continues beyond three (3) months shall entitle the Customer to terminate the Agreement with immediate effect by simple written notification to UgenTec, without judicial intervention and without any liability on the part of UgenTec.
14.5 If a substantial and disproportionate prejudice is caused to the interest of one of the Parties as a direct result of changes in economic and/or business conditions, such as but not limited to currency fluctuations, increases of costs imposed by the government, levies and taxes, server and communication costs, import and export duties, insurance issues, beyond the control of such Party, then upon the written request of such Party, the Parties shall promptly meet to consider whether such hardship exists and, if so, what modifications, if any, to the terms of the contract are necessary to provide a fair and equitable method of mitigating, removing or avoiding any such hardship; such method to recognize the interests of both Parties.
14.6 The Customer shall always be required to pay all fees for Services that have already been performed resp. provided on the date of suspension, revision or termination, and any costs incurred or still to be incurred by UgenTec as a consequence of the suspension, revision or termination.
15. TERM AND TERMINATION
15.1 The Agreement shall remain in effect until the date as specified in the proposal/Purchase Order.
15.2 In case no term was specified, the Agreement will be concluded for an initial period of three (3) years.
Notwithstanding the initial term of the Agreement, the Agreement shall be automatically renewed for consecutive periods of one (1) year, unless either Party terminates this Agreement by sending a written notice to this effect by registered mail at least six (6) months prior to the expiration of the initial or renewed term.
15.3 Notwithstanding the above, either Party shall have the right at any time during the duration of this Agreement, to terminate it forthwith by sending a written notice to this effect to the other Party by registered mail, specifying the reasons for the termination:
a) in the event such Party detects a material breach of the Agreement;
UgenTec will consider (amongst others) the following events as a material breach:
- Failure to pay invoices for which payment is due;
- Unauthorized or illegal use of the Services;
- Intellectual property infringement (cfr. ARTICLE 12).
- Breach of the confidentiality obligations (cfr. ARTICLE 13).
b) in the event exceptional circumstances lead to a definitive impossibility for the Parties to cooperate professionally in the future.
The Parties agree that, among others, the following circumstances need to be considered as exceptional circumstances:
- bankruptcy or dissolution of one of the Parties;
- a continuous situation of force majeure as described above;
- every other circumstance that seriously affects a Party’s ability to comply with the contractual obligations or as a consequence of which, one cannot reasonably expect that Party to comply with its contractual obligations;
c) if the other Party breaches any of its obligations under the Agreement, notwithstanding a written request from the former Party to refrain from such a breach, and, if possible, to prevent such a breach or breaches from occurring in the future and to rectify the situation, and the breaching Party fails to comply with such a request within a period of fifteen (15) days after receipt of that request
15.4 In case of any change to the situation of the Customer, such as decease in case of a natural person, conversion, merger, takeover, transfer, liquidation, suspension of payments, collective composition or out of court settlement, application for postponement of payment, closing down activities, seizure or any other circumstance that could harm confidence in the Customer’s creditworthiness, UgenTec reserves the right, simply for that reason: either to suspend execution of one or more agreements with the Customer until the Customer has offered sufficient payment guarantees; or to declare one or more agreements with the Customer dissolved from the date of sending the dissolution, without prior notice of default, without recourse to a court of law and without prejudice to the right of UgenTec to claim additional compensation.
15.5 If the agreement between UgenTec and the Customer is terminated, the Customer no longer has the right to demand UgenTec to perform its obligations with regard to the terminated agreement.
15.6 UgenTec shall never be obligated to refund the Customer any fees if the Customer terminates the Agreement during the Term (without the termination being the result of a material breach of UgenTec).
15.7 Regardless of the cause for termination, the following consequences will follow the termination of the Agreement:
a) The Services shall be inaccessible for the Customer and End-Users;
b) UgenTec is entitled to refuse any request from the Customer to enter into a (new) Agreement with regard to the Services.
c) Each party will discontinue its use and will return the confidential information and proprietary materials of the other.
15.8 Articles 12, 13 and 19 shall survive the termination of the Agreement and continue in full force and effect.
15.9 The termination of the Agreement, for whatever reason, shall not prejudice the rights acquired by each Party.
16.1 UgenTec has the right to have (a part of) the agreed services performed by a subcontractor or supplier, without the prior approval of the Customer being required.
16.2 UgenTec undertakes to make a list available of subcontractors on which it appeals for the performance of the agreed services.
UgenTec undertakes to inform the Customer in writing of any intended change to the aforementioned list (such as but not limited to adding or replacing a subcontractor).
16.3 The Customer is entitled to oppose to a new subcontractor appointed by UgenTec. If the Customer wishes to exercise its right to object, the Customer shall notify UgenTec in writing and in a reasoned manner by the latest within ten (10) days upon receipt of UgenTec’s notice (cf. Article 16.2).
In the event the Customer objects to a new subcontractor and such objection is not found unreasonable, UgenTec will use reasonable efforts to (i) make available to the Customer a change in the services, or (ii) recommend a commercially reasonable change to the Customer’s use of the services to avoid the performance of services by the objected subcontractor.
17. (PERSONAL) DATA AND IMAGES
17.1 The Parties undertake to comply with the applicable privacy legislation for the processing of (personal) data.
17.2 UGENTEC as controller
The collection by UgenTec of personal data of the (potential) Customer and/or its personnel/staff shall take place in accordance with the provisions of UgenTec’s DPA (Chapter II). In such event, UgenTec acts as controller. This DPA includes information about the personal data collected by UgenTec, as well as the manner in which UgenTec uses and processes this personal data.
17.3 UGENTEC as processor
The Customer acknowledges that – with regard to the processing of all data entered and uploaded via the Services – UgenTec shall act as processor.
18. OTHER PROVISIONS
18.1 No Waiver: Any failure or delay by UgenTec in exercising any right under an agreement and/or these GT&C with the Customer, any single or partial exercise of any right under such agreement and/or these GT&C or any partial reaction or absence of reaction by UgenTec in the event of violation by the Customer of one or more provisions of such an agreement and/or these GT&C, shall not operate or be interpreted as a waiver (either express or implied, in whole or in part) of UgenTec rights under such agreement, these GT&C or under the said provision(s), nor shall it preclude any further exercise of any such rights. Any waiver of a right must be express and in writing. If there has been an express written waiver of a right following a specific failure by UgenTec, this waiver cannot be invoked by the Customer in favour of a new failure, similar to the prior one, or in favour of any other kind of failure.
18.2 Notices: Any notice to be given shall be deemed duly given when sent by e-mail and postage prepaid or courier and addressed to the other Party’s address indicated on the identification page of the Agreement . It shall be deemed received three (3) working days after the date of dispatch in the case of e-mails and in the case of postage prepaid or courier on the date of receipt by the other Party. Either Party may change the address to which notices are to be delivered or sent by giving the other Party written notice to this effect in the manner set forth herein.
18.3 Divisibility: Whenever possible, the provisions of the Agreement or these GT&C shall be interpreted in such a manner as to be valid and enforceable under the applicable law. If any part or any clause is for whatever reason held to be illegal, invalid or unenforceable, such provisions shall be deleted and the remaining parts or clauses shall not be affected and shall remain valid and enforceable as if the invalid or unenforceable parts or clauses were not part of the Agreement / GT&C.
Any such part or clause shall be replaced by a provision that, insofar as legally possible, comes closest to the intention of Parties in the affected part or clause. Parties shall in good faith negotiate and agree a mutually acceptable provision that shall replace the deleted provision.
18.4 Non-transfer: These GT&C and the rights and obligations ensuing from it for Customer may not be transferred either directly or indirectly without the written consent of UgenTec.
UgenTec shall have the right to transfer these GT&C and any other agreement and the rights and obligations ensuing from it to a third Party. In that case a new agreement between Customer and the third Party shall be concluded with terms and conditions (rights and obligations) identical to those in these GT&C for the remaining term.
18.5 Netting: In accordance with the Belgian Act on Financial Guarantees of 15 December 2004, UgenTec and the Customer will automatically set off all currently existing and future debts towards each other by operation of law. This means that in the long-term relationship between UgenTec and the Customer the largest amount receivable will always remain on balance after the above-mentioned automatic set-off.
This set-off will in all events be enforceable against any trustee in bankruptcy and other joint creditors, who will therefore not be able to object to the set-off performed by UgenTec and the Customer.
19. JURISDICTION AND APPLICABLE LAW
19.1 Any disputes, irrespective of its nature and the place of delivery, between UgenTec and the Customer shall as much as possible be settled amicably. In case the Parties do not reach an agreement within a period of thirty (30) days after the negotiations have started, the dispute shall be settled in negotiations between the management of each Party, which managers shall have the necessary proxy to bind the company.
19.2 If the dispute is not settled within a period of thirty (30) days after the negotiations between the managers of the Parties have started, the Parties hereby undertake to apply the CEPANI Mediation Rules. Unless otherwise agreed upon between the Parties, the place of the mediation shall be Hasselt (Belgium) and the proceedings shall be conducted in English. Should the mediation fail, the dispute shall be finally settled under the CEPANI Rules of Arbitration by one arbitrator appointed in accordance with the said Rules. The place of the arbitration shall be Hasselt (Belgium). The arbitration shall be conducted in English.
19.3 The present GT&C as well as any agreement between Parties, of whatever nature, are governed by and construed in accordance with the laws of Belgium, with exclusion of (1) all conflict of laws rules, (2) the UN Convention on the International Sale of Goods (1980), and (3) the NY Convention on the Limitation Period in the International Sale of Goods (1974).
19.4 Without prejudice to any other provision of these GT&C, any claims by the Customer arising out of or in connection with an agreement between Parties will in any event become time-barred after expiration of one (1) year as from the date of delivery of the relevant goods/services.