General Terms and Conditions
1. Definitions
“Assignment”: the Services that ENPERAS is offering, as described in the Tender.
“Background IPR”: the information, know-how, technologies, methods, techniques, skills, algorithms, methodologies, materials and Intellectual Property Rights pertaining to the same or related areas as those applicable to the Assignment, held by and/or in the possession of or controlled by ENPERAS prior to the Commencement Date including all developments, improvements and/or additions to these that ENPERAS generates and/or that are made outside the scope of the Assignment.
“Client”: the party named in the Contract as the party that shall benefit from the Services or Materials to be provided.
“Commencement Date”: the date on which the Contract is validly concluded according to Article 5.2 of these General Terms and Conditions.
“Contract”: the documents that regulate the contractual relationship between ENPERAS and the Client, consisting of the Offer, these General Terms and Conditions and any Special Conditions that ENPERAS and the Client have agreed on in writing.
“Day”: a day (other than a Saturday or Sunday) on which the banks in Belgium are open for business.
“Foreground IPR”: the information, know-how, technologies, methods, techniques, skills, algorithms, methodologies, materials and Intellectual Property Rights that ENPERAS generates in the context of its Assignment(s).
“Intellectual Property Rights”: any and all rights, titles and interests in and to any and all
(i) patents, utility models, designs (whether registered or not), trademarks, trade and business names, copyrights (including copyrights in programs and semiconductor topographies), software rights, domain names, databases, moral rights, trade secrets, confidentiality and other property rights, including all rights to know-how and other technical or confidential information, rights relating to unfair competition rights, the right to sue in passing off, all of the foregoing whether registered or not, whether perfected or not;
(ii) the benefits from all registrations and applications to register any of the foregoing;
(iii) any and all other rights similar or analogous to any of the foregoing arising or granted in any jurisdiction.
“Location”: the place where ENPERAS shall perform the Services, if this location is a location other than the premises of ENPERAS.
“Party”: the Client or ENPERAS.
“Parties”: the Client and ENPERAS.
“Results”: the data delivered to the Client at the end of the Contract, according to the provisions of the Contract; excluding Background IP.
“Services”: the services that ENPERAS is to provide to the Client as set out in the Contract.
“Software”: the SAAS LCA software licensed to the Client, according to the provisions of the Contract; excluding Background IP.
“Special Conditions”: all possible additional terms and conditions and/or derogations from the present General Terms and Conditions, as agreed on in writing by the Parties.
“Offer”: the document and any appendices to the said document that describes the Services and Materials which ENPERAS is offering to the Client, including the financial and other conditions thereto.
”Third Parties”: any person or entity other than the Client or ENPERAS, as the context requires.
“ENPERAS”: ENPERAS NV, with its registered office at Thor Park 8300, 3600 Genk, Belgium RPR Turnhout VAT BE-0766.508.153
2. Scope of application
2.1 The following General Terms and Conditions for ENPERAS shall apply to all Services that ENPERAS supplies to the Client. In the event the Client presents its own general terms and conditions when concluding the Contract or having done so, the general terms and conditions of the Client shall not apply, unless ENPERAS has explicit agreed to this.
2.2 No derogations from these General Terms and Conditions shall be accepted, unless explicitly agreed on in the Special Conditions or in the Tender. Derogations shall only apply to the specific Tender and Services for which the Parties have explicitly agreed on the derogation.
3. Contractual documents
3.1 The Contract shall consist of the following documents, listed in decreasing order of precedence:
- the Special Conditions;
- the Offer and its appendices; and
- the present General Terms and Conditions.
3.2 The Contract shall contain the entire agreement of the Parties hereto with regard to the object to which it refers and shall contain everything the Parties have negotiated and agreed upon within the framework of the Contract. It replaces and annuls any agreement, communication or correspondence, oral or written, previously exchanged or concluded between Parties and referring to the same object.
4. Nature of the Services
4.1 ENPERAS shall perform the Assignment to its best knowledge and ability, with the degree of skill and care which would reasonably and ordinarily be expected of a professional service provider in similar circumstances; in accordance with the rules and legislation, regulations, instructions and technical standards applicable on the date on which the Contract is concluded. It is agreed that ENPERAS shall enter into an obligation of means with regard to the Results envisaged.
5. Term and termination
5.1 Unless specified otherwise in the Offer, ENPERAS shall be bound by its Offer for a period of ninety (90) calendar days, to be calculated from the date of the submission of the Offer.
5.2 The Contract shall be deemed to be concluded on the earliest of the following dates:
- the date of signing the Contract;
- when the Client returns the Offer duly signed for acceptance;
- ENPERAS commences the performance of the Services with the knowledge of the Client.
5.3 The Contract shall commence on the Commencement Date and end on the date on which the final report or final invoice is sent to the Client as described hereinafter.
5.4 When the Assignment has been completed, ENPERAS shall submit a final report or final invoice to the Client. The Client shall submit any reservations it has on performance of the Assignment in writing to ENPERAS within a period of fifteen (15) Days. In absence of any reservations within this period, the final report and, where appropriate, the final invoice shall be deemed to have been accepted. Acceptance of the final report or the final invoice shall also imply acknowledgement by the Client of the proper performance of the Assignment in accordance with the provisions of the Contract.
6. Performance
6.1 The Client shall in due provide ENPERAS with all information, documentation and/or materials necessary for the proper performance of the Services. ENPERAS shall not be held liable for incompleteness, mistakes and/or errors that are the direct or indirect result of incomplete and/or inaccurate information and/or documents provided by the Client or its employees, nor for any delay to performance of the Assignment that is attributable to the late availability of the aforementioned information and/or materials.
6.2 Except where explicitly agreed otherwise in the Contract, the time schedule specified by ENPERAS shall be considered as indicative. ENPERAS shall keep the Client promptly informed about any and all circumstances and events that might affect the timely performance of the Services according to this time schedule. If the time schedule is not met, ENPERAS and the Client shall decide on any action to be taken. The Client shall not be entitled to terminate the Assignment for any delay, nor to any liquidated damages.
7. Payments
7.1 Unless stated otherwise in the Tender, all amounts mentioned are exclusive of VAT at the applicable rates.
7.2 Payments shall be due according to the agreed invoice schedule. In the absence of a payment schedule, the amount due is invoiced by ENPERAS as follows:
- 50 % in advance within fourteen (14) calendar days of the Commencement Date,
- 50 % upon completion of the Assignment (final invoice).
7.3 The Client shall be obliged to pay invoices without any deduction, withholding or discount within thirty (30) calendar days of the invoice date. Any claim relating to an invoice, other than the claim provided in article 5.4, must be sent to ENPERAS by registered mail within five (5) Days of its receipt.
After this period, no further claim shall be taken into account. A claim may in no circumstances justify suspension of payment.
7.4 If payment of any amount due by the Client to ENPERAS is not effected as agreed upon, the Client shall be legally in default without any notice and ENPERAS shall be entitled to charge, without any prior notice required, interest on any overdue amount equal to the reference rate plus 7% in accordance with the provisions of the law of August 2, 2002. In addition, ENPERAS shall be entitled to a compensation equal to 10% of the amount due, subject to a minimum of EUR 100.00, without prejudice to its right to claim reasonable compensation for all legal recovery costs incurred as a result of the client’s late payment.
7.5 All payments to be credited to ENPERAS shall first be set-off against costs, then against outstanding interest and finally against the principal claim. In the event of several outstanding debts, the payments received shall first be set off against the oldest claim in the same manner.
8. Confidentiality
8.1 In the absence of a specific agreement (e.g. non-disclosure agreement) between ENPERAS and the Client, the following provisions shall apply with regard to the treatment of information and/or Materials exchanged during the Assignment.
8.2 All information, be it of a scientific, technical, financial, commercial or other nature, in written, electronic or in any other material or immaterial form - excluding the Results -, which ENPERAS discloses to the Client shall be deemed to be confidential.
8.3 The information that the Client discloses to ENPERAS shall not be confidential, except where the Client explicitly qualifies the said information as confidential and does this so no later than at the time at which it is disclosed and provided this is compatible with performance of the Assignment by ENPERAS.
8.4 The Party that receives the confidential information shall undertake to maintain its confidentiality, not to disclose the said information to Third Parties without the prior written permission of the other Party, to treat it with the same care and protect it as it would its own confidential information and to do so with a reasonable degree of care at the very least, which it shall do throughout the term of the Assignment and for a period of five (5) years from the date of the final invoicing for the Assignment.
9. Results - Rights of use
9.1 Executing the Assignment by ENPERAS shall not imply the transfer of Intellectual Property Rights from ENPERAS to the Client or Third Parties in any way or at any time whatsoever.
9.2 Subject to full and timely payment of the remuneration as provided in the Contract, the Client shall acquire the right to use the Results for the purpose stipulated in the Contract. This shall include whether the Results can be used for the purpose of design; financing, transfer, hire, sale and also disclosure, exhibition, the broadcasting of a film via a cable company, illustration of the Assignment (on the basis of photos or other media) and also the right to copy the Results.
9.3 ENPERAS herewith grants the Client a royalty-free, non-transferable and non-exclusive license to its Foreground IPR, insofar as this Foreground IPR is needed to use the Results for the purpose set out in the Contract. A license of this nature shall not include the right to grant sub-licenses.
9.4 Upon written request of the Client within six months of the date on which the Assignment ends, ENPERAS shall grant the Client an exclusive license to its Foreground IPR. Parties shall specify the terms and conditions hereto in a separate agreement, including the payment that the Client has to pay for the exclusive use of the Foreground IPR. In any event, ENPERAS shall be able to use the Foreground IPR that it has developed for further scientific research, regardless of the way in which this scientific research has been financed.
9.5 If the Client requires the use of any Background IPR for the Client’s commercialization of the Results - even if this Background IPR already forms part of the Results – the Client shall require the prior, written permission of ENPERAS for such use and the Parties shall enter into a separate agreement in which they specify the terms and conditions applicable in this respect, including the payment of royalties by the Client to ENPERAS for the use of this Background IPR.
10. Software provisions
10.1 The Client shall refrain from distributing or allowing distribution, of all or parts of the Software, by any system whatsoever. The client is prohibited from reproducing, reproducing or allowing the reproduction, even partial, of this Software regardless of the terms. Violation of these provisions may result in the cancellation of any order, notwithstanding the initiation of legal proceedings.
10.2 The Software supplied under the contract remains the property of its author. Consequently, the Client acquires from ENPERAS, by virtue of the Contract, a personal, non-exclusive, non-assignable and non-transferable right of use of the Software appearing in the description of the Offer.
10.3 This concession is granted to the Client in return for the payment of a fixed fee stipulated in the Offer.
10.4 The duration of the concession will be equal to that appearing in the terms and conditions of the contract.
10.5 The rights to use the Software are granted to the Client for a number of work units expressed in the form of quantities, thresholds or ceilings, these elements being specified in the Offer. Any change in the number of work units is subject to the express agreement of ENPERAS and, where applicable, to the payment of an additional royalty at the rate in force.
10.6 As the Software provided by ENPERAS is only accessible on the Internet, the Client must have access subscribed to with the operator of his choice.
10.7 ENPERAS takes no responsibilities in the event of cloud problems (access, interruptions, slowdowns) beyond the control of ENPERAS, or internet access by the Client.
10.8 ENPERAS provides telephone assistance during working hours in the event of problems using the software provided (access times, conditions, etc.)
10.9 ENPERAS regularly updates the Software and informs the Client with FAQ available for each new version, and possibly to train him on request when the Software has been significantly modified.
The Client automatically benefits from it within the framework of his valid contract. This in no way modifies the terms of the general conditions.
10.10 The Client is informed that technological developments may involve software updates.
Consequently, all or part of the Client's equipment, in their initial configuration, may not support a Software update. ENPERAS cannot be held responsible for this.
11. Publications
11.1 ENPERAS shall be entitled to disclose and publish the Results in a manner that is customary in the scientific world, except to the extent that the Results include confidential information of the Client.
11.2 ENPERAS shall be entitled to disclose the name of Client and/or its brand or logo in external communication.
11.3 The Client shall be permitted to use the name of ENPERAS, and/or its brands or logo in external communication.
12. Liability
12.1 ENPERAS makes no representation or extends any warranty of any kind either expressed or implied regarding the originality or fitness for any purpose of the Results.
12.2 The Client assumes full liability for the use, misuse or fitness for any purpose of the Results and shall indemnify and hold ENPERAS harmless against claims submitted by Third Parties to this end.
12.3 Except for willful misconduct and gross negligence, ENPERAS can only be held liable for direct damages which the Client suffers as a result of an incorrect performance of the Assignment by ENPERAS, the maximum amount being the remuneration (excluding any taxes and duties) which is due by the Client for the performance of the Assignment.
12.4 Under no circumstances whatsoever shall ENPERAS be liable for indirect or consequential damages or losses such as, but not limited to, the loss of income, claims from third parties, the loss of clients, the loss of data, the impossibility of implementing a business operation that has been planned, nor for any other damage, loss or defects that are attributable to the use of the Results by the Client.
13. Termination
13.1 In the event of circumstances beyond its control, ENPERAS shall be entitled to suspend its obligations as long as these circumstances exist, whereby ENPERAS is not due any damages.
13.2 If the Client fails to fulfil any of its contractual obligations, ENPERAS will notify the Client accordingly in writing. If the Client does not remedy his breach within fifteen (15) Days after receipt of the aforementioned notification, his rights under the Contract will lapse, and ENPERAS can terminate the Contract with immediate effect, whereby ENPERAS will no longer be bound to fulfil any obligation arising from the Contract.
13.3 ENPERAS can terminate the Contract with immediate effect through written notification to the Client in the event of suspension of the activities of the Client, in the event of liquidation or insolvency of the Client, in the event of an application for a composition or of the filing of a bankruptcy petition by or for the Client, in the event of a similar measure, or in the event of the whole transfer of title to the Client’s enterprise for the benefit of creditors.
13.4 In the event of the application of Articles 13.2 or 13.3 or if the Client cancels or terminates the Assignment without any reason for doing so, the Client shall be required to pay a fixed compensation equal to 20% of the remuneration agreed on for execution of the Assignment.
13.5 Articles 7, 8, 9, 10, 11, 13, 15.4 and 15.6 shall continue to apply even after the expiration or termination of the Assignment.
14. Applicable law and disputes
14.1 The Contract shall be governed by Belgian law, excluding the conflict of law provisions.
14.2 Any dispute arising from the Contract, unless resolved by amicable negotiations, shall be finally settled by the competent courts of Antwerp (Belgium).
15. Miscellaneous
15.1 The Parties shall not assign or transfer the Contract to Third Parties without the prior written consent of the other Party, which shall not be unreasonably withheld. In the absence of such consent, the other Party shall be entitled to cancel the Contract unilaterally by registered letter, without the Party who has assigned the Contract without consent, entitled to any compensation.
15.2 The Contract shall constitute the only agreement between the Parties regarding the Assignment. Amendments or addenda to the Contract must be made in writing and signed by the Parties.
15.3 If the Client is subject to the public procurement legislation, ENPERAS declares, by submitting its Tender, that it will explicitly waive any of its General Terms and Conditions that are in conflict to any essential provisions in the specifications or in the request for proposals.
15.4 By accepting the Tender or by entering into the Contract, the Client guarantees ENPERAS that it shall refrain from using the Results in any manner that would result in the violation of Export Laws.
15.5 The Client agrees that the execution of the Contract by industry standard electronic signature software and/or by exchanging PDF signatures shall have the same legal force and effect as the exchange of original signatures, and that in any proceedings arising under or relating to the Contract, the Client waives any right to raise any defense or waiver based upon execution of the Contract by means of such electronic signatures or maintenance of the executed agreement electronically.
15.6 Non-recruitment of employees: The Client expressly refrains from soliciting for the purpose of hiring, or hiring, directly or indirectly, any employee of ENPERAS. This prohibition applies throughout the duration of the contract and for the twelve (12) months following its termination, whatever the cause. In the event of a breach of this prohibition, the Customer will be required to immediately pay ENPERAS, as a penalty clause, a lump sum compensation equal to twelve (12) months of the last gross monthly salary of the employee requested or hired, increased by all the costs of recruiting a replacement.