1.1 These Terms and Conditions govern the relationship between INCIZE SPRL, a company incorporated under Belgian Law with company register number 0548.752.952, having its registered office at B-1348 Ottignies-Louvain-la-Neuve, Chemin du Cyclotron 6, hereinafter “INCIZE” and its Client. Except express written agreement by INCIZE stating the contrary, these Terms and Conditions apply to all services and goods, tools, applications, quotations, orders reports, contracts and invoices (hereinafter jointly: the “Services”) rendered, delivered or established by INCIZE, even in case of absence of any signed order form by the Client.
The Client’s terms and/or conditions will under no circumstances apply, unless specifically agreed upon in writing by INCIZE.
1.2 No derogation from the provisions of these Terms of Sale is possible unless agreed upon in writing by INCIZE. Derogation to one or more articles of the present Terms and Conditions will not affect the applicability of the other articles of these Terms and Conditions.
1.3 The Services rendered by INCIZE might be subject to a specific agreement between INCIZE and the Client. In case of contradiction between provisions from the present Terms and Conditions and provisions from a specific agreement, the latter conditions will prevail.
1.4 All rights and obligations established between the Client and INCIZE (together the “Parties”) regarding the Services ordered by the Client shall collectively be called “the Agreement” to which the present Terms and Conditions shall apply.
1.5 Both the present Terms and Conditions as the conditions in a possible specific agreement between the Parties are considered to be known and accepted, either by the signature of the Client on a document referring to any of these conditions or by the absence of any opposition by the Client in writing within five (5) business days after receipt of the first document that communicates any of these conditions. In case of absence of a reaction within the before mentioned period, all information transmitted by the Client is considered to carry the latter’s acceptance regarding the correctness and relevance of that information for the Services at stake. In case of continuous commercial relations the present Terms and Conditions can not be disputed anymore.
2. Conclusion of Agreement
2.1 Upon request, INCIZE will provide the Client with a quotation, offer or estimate based on the information provided by the latter to INCIZE. Any change regarding this information might imply a revision of the price and/or the delivery modalities by INCIZE. All quotations, estimates and offers shall lapse if not accepted within a period of 30 working days.
2.2 Orders by Clients, hereinafter also including the acceptance of quotations, estimates and/or offers, must be delivered to INCIZE in writing (by letter, email or fax). Any disputes shall be settled on the basis of written documents. In the absence of the latter INCIZE, cannot be held responsible in the event of any possible misinterpretation of an order or request made by the Client. Every order is irrevocably binding for the Client.
2.3 INCIZE shall at all time preserve the right, without having to provide for any reasons, to refuse orders by the Client or the delivery of Services without notification of the motive, however, including for the execution of orders that could potentially harm INCIZE’s quality of Services or its reputation.
2.4 A written order from the Client or a confirmation of the order by INCIZE is provided for each additional order.
2.5 The cancellation of the order, regardless of the timing and reason, entitles INCIZE to the payment of the entire fee envisaged, subject to the right of INCIZE to claim full compensation for any damage and/or costs that might have occurred or occur because of the cancellation. The present article applies to all cancellations, whether before, during or after the completion of the Service(s) covered by the cancelled order.
2.6 An agreement is concluded upon the Client’s acceptance of a quotation, offer or tender established by INCIZE, or its authorized representative, in accordance with article 2.1 above. If the actual delivery of the Services took place before the express written conclusion of an agreement by the Client, the contract is deemed to have commenced on the date of commencement of the actual delivery.
2.7 If Services constituted from diversified performances are foreseen, each performance needs to be considered as a separate agreement, so that events that relate to a given performance, do not affect subsequent performances.
3. Delivery Term
3.1 The negotiated deadlines for delivering the Services may be extended following a possible delay of the Client in providing the necessary information and/or samples needed for the performance of the Services, as well as any other ground beyond INCIZE’s reasonable control.
3.2 A delay in delivering the Services can in no way cause the cancellation of an order and/or the termination of the present Agreement, nor the payment of damages of any kind by INCIZE.
4. Execution of the agreement, complaints and acceptance
4.1 INCIZE undertakes to deliver the Services to the best of its ability in light of its available technical capacities and in accordance with the requirements and expectations of good practice to perform.
4.2 INCIZE shall preserve the right to modify the manner in which it executes the Agreement following any possible changes relating to its technical framework, unforeseen workload, legal changes etc. The Client shall not have the right to claim any form of compensation due to such modifications made after reasonable consideration by INCIZE.
4.3 If required for the proper execution of the Agreement, INCIZE reserves the right to have certain work done by subcontractors and other third parties.
4.4 In order to be valid, the Client’s complaints must be communicated by registered letter within seven (7) days after the delivery of the Services, and if applicable, the delivery of the goods. An absence of a complaint within the aforementioned timeframe implies the Client’s unconditional and irrevocable acceptance, without reservation, of the Services delivered as well as of the respective invoice. Complaints are not such that they suspend the payment obligations regarding other supplies or Services.
4.5 The use of a part of a delivery (goods or Services) automatically implies the acceptance of the whole of the goods and Services. Defects in a part of the delivery do not entitle the Client to reject the goods or Services as a whole.
5. Price and Payment
5.1 All prices in tenders, quotations and/or orders are exclusive of VAT, unless expressly indicated otherwise by INCIZE. The Client will be the sole responsible to abide by the relevant VAT and other applicable tax provisions relating to the Services ordered.
5.2 INCIZE holds the right to require an advance payment by the Client prior to the execution of the Services. Such advance payments will be calculated within the price of the order. In the absence of payment of the advance or the balance of the Services, INCIZE may retain the delivery and/or performance of its Service as security for the sums due.
5.3 Invoices are payable according to the invoice payment terms from the day of receipt and without discount unless otherwise stated on the invoice. All invoices not paid on due date, shall automatically and without prior notice, result in contractual interest at the rate of 10% per month from the due date, with a minimum fee of 500 Euros.
In case of late payment, INCIZE is competent to dissolve the agreement with immediate effect or to suspend any (further) delivery until the Client complies with his commitments, including payment of the due interests and costs.
5.4 In addition to previous article 5.3, the Client will have to pay a fixed and irreducible compensation of 15% payable on the outstanding invoice amount, without prejudice to the delay interest referred to in the previous article of the present Terms and Conditions, as well as any applicable charges and court fees.
5.5 The non-payment of any invoice when due, authorizes INCIZE to demand immediate payment of the integral, outstanding balance from its debtor and provides INCIZE the right to cancel all current orders unilaterally without any formal requirements. Such cancellation does not prejudice INCIZE’s right to obtain compensation.
5.6 The (fixed and variable) prices and fees used by any of INCIZE’s subcontractors, partners, suppliers etc. might be subject to change, without any prior notification. In such case INCIZE shall preserve the right to impose new prices to the Client, even without warning (see also article 4.3).
6.1 To the fullest extent permitted by law, INCIZE shall under no circumstance be liable for any damages hereunder, direct, incidental, compensatory, consequential, indirect, special, exemplary, punitive or any other damages whatsoever, regardless of the form of action or basis of any claim and the Client’s sole and exclusive remedy hereunder shall be the termination of the Agreement.
6.2 INCIZE can not be held liable for the temporary failure or malfunctioning of its tools, systems or Services, be it technical or otherwise, whether due to force majeure or not.
6.3 The aggregate Liability of INCIZE under these Terms and Conditions shall be limited to such liability as is covered and effectively recovered by INCIZE’s professional insurance policy terms. The overall liability, whether covered by INCIZE’s insurance professional insurance policy or not, shall furthermore in any event be limited to refunding the price of the non-conformingly executed part of the delivery. Liability for any other form of damage, claims, losses, costs, including attorneys’ fees and costs, and costs of any nature whatsoever or claims expenses resulting from or in any way related to the present Terms and Conditions or the relationships with the Client is hereby expressly excluded.
6.4 INCIZE can not be held liable for damages resulting from the deployment of third parties for the proper performance of the contract as defined in article 4.3 of the present Terms and Conditions.
6.5 With the exception of malicious damage and professional negligence on the part of INCIZE, his personnel or his subcontractors, any difficulties or delay during production caused by problems with supplied materials shall extend the deadline and increase the price by the amount of the additional costs incurred by such problems.
6.6 INCIZE can not be held liable for damages of any nature whatsoever, which are the result of improper, incorrect or unclear information, data, samples and/or materials provided by the Client.
6.7 INCIZE shall not be liable for any samples or materials - in whichever form - handed over by the Client. The Client expressly indemnifies INCIZE of any liability, particularly in the case of total or partial damage or loss due to any reason. Hence the Client shall remain the exclusive owner of the samples and/or materials he or she provides for.
6.8 Notwithstanding the payment modalities provided for in article 5 of the present Terms and Conditions, any reduction in the credit situation of the Client, or indications in this regard, shall justify INCIZE’s request for guarantees or for an advanced settlement, and this before the execution of the orders received.
6.9 The Client shall indemnify and hold INCIZE harmless from and against any and all damages, liabilities, losses, costs and expenses (including reasonable legal fees) sustained, incurred or suffered by INCIZE, arising in any way out of or resulting from the Client, its officers, directors, members, suppliers, agents or representatives (including due - in any way or form - to the samples and/or materials provided).
6.10 The Client shall indemnify INCIZE for any legal claim from third parties regarding the transferred samples and/or materials for which the Client remains responsible at all time.
7. Undertakings and Warranties
7.1 The Client undertakes to make available all materials and all documentation useful or necessary for the performance of the Services, and provide INCIZE with all the resources necessary to enable INCIZE to properly carry out its obligations under the Agreement.
7.2. The Client represents and warrants that it:
(i) has the right to enter into the Agreement which, once duly executed by both parties, shall represent a binding legal agreement, enforceable by INCIZE in accordance with its terms;
(ii) shall faithfully and in a timely, professional manner, honor, adhere to and be in compliance with all of the requirements and obligations set forth in the Agreement;
(iii) shall ensure that its activities, conduct, actions, materials and/or relationships shall not infringe upon or violate the rights of any party, nor any laws, regulations, ordinances or orders of any judicial or governmental authority. To the extent such laws, regulations ordinances or orders conflict with the terms of the present Terms and Conditions, the Client agrees to promptly notify INCIZE and INCIZE shall have the sole right to determine how to resolve such conflict, always subject to applicable laws, rules or regulations.
7.3 The Client represents and warrants that it holds all rights, approvals and licenses required for use or reproduction of any samples and/or materials provided by the Client to INCIZE.
8. Term and Termination
8.1 The Agreement shall be legally binding upon both parties from the written acceptance of the quotation, order or tender by the Client unless terminated earlier in accordance with its terms and shall continue until full payment by the Client of the Services rendered.
8.2 INCIZE shall have the right to terminate the Agreement, by giving written notice yet without having to provide for reasons or indemnify the Client in any way, in the following cases:
(i) gross negligence, fraud or violence by the Client;
(ii) a material or repeated breach of the Agreement by the Client which renders any further cooperation impossible, or, if it concerns a breach that can be remedied, if such breach is not resolved and/or no end has been made to the breach within 7 days after written notification with acknowledgment of receipt provided by INCIZE describing the breach of agreement and the request to make an end to such breach;
(iii) the Client suspending or threatening to suspend the payment of its debts, the Client being unable to pay its debts as they fall due, the Client admitting its inability to pay its debts, or the Client deemed unable to pay its debts following a decision of a competent national authority. Any other case practically identical or similar to the consequence of a potential bankruptcy of the Client.
(v) a change of legal control of the Client as an entity;
(vi) the existence of reasonable suspicion, or indications leading thereto, with regard to the insincere, deceptive or bad faith intentions of the Client, potential future irregularities, violation of any legal provision or any of the obligations in the present Terms and Conditions.
8.3 Upon termination of the Agreement according to article 8.2 of the present Terms and Conditions above, the Client shall immediately pay all remaining amounts due under the Agreement to INCIZE. This includes all payments due for Services delivered until the termination as well as payments for the Services that were supposed to be delivered until the end of the Term.
8.4 In the case of non-fulfilment by the Client of its obligations or in default of payment of invoices according to the conditions specified in article 5 of the present Terms and Conditions, INCIZE may suspend the delivery of its Services without the suspension leading to a termination of the Agreement.
8.5 In case the non-fulfilment by the Client of its obligations – in total or in part – continues for a period of 30 days after a written notice is delivered by INCIZE, the latter can consider the Agreement to be automatically terminated borne by the Client.
8.6 In case the Client would terminate the Agreement unilaterally, outside the framework of the conditions provided in the present Terms and Conditions, the Client commits itself to pay INCIZE a lump sum payment of EUR 1,500 by way of compensation within 7 days of the termination of the Agreement by the Client. The Client shall furthermore pay all outstanding amounts due as if the Agreement would have been terminated in respect of article 2 of the present Terms and Conditions.
9. Intellectual Property
9.1 All intellectual property rights and derived rights relating to INCIZE’s Services, applications, platforms, tools, website, inventions and all other elements belonging to INCIZE continue to be retained by INCIZE. These intellectual property rights shall be taken to mean copyrights, trademark rights, patents, designs and models rights and/or other (intellectual property) rights, including technical and/or commercial know-how, methods and concepts, whether or not patentable. The Client is not permitted to operate, use or modify any ideas, concepts, graphics, engineering structures, scripts, databases, software applications, source code, design, technologies of INCIZE etc. without the express prior consent of INCIZE and this during the Agreement and after its termination. Any transfer of the before mentioned rights must be the subject of a separate written agreement.
9.2 Nothing in the Agreement, nor in any specific agreement with a Client, shall be understood as a waiver of INCIZE’s intellectual property rights, including copyright, trademark and patents, to any of such Services, reports, tools, applications etc.
9.3 The Client shall be the sole responsible to ensure the respect of all the intellectual property rights of third parties, including patent rights and copyright, when making available, transmitting or providing materials of any kind through INCIZE’s Services. INCIZE will under no circumstance be liable for any damage that might occur, including the violation of a third party’s intellectual property rights, following the use of any such materials through its Services for which Client shall remain exclusively responsible.
9.4 The physical transfer of ownership of the agreed Services takes place only after any outstanding balance is fully paid and received in accordance with article 5 of the present Terms and Conditions. Until then, the Client can not freely dispose of the delivered Services.
10.1 Both Parties agree to regard and preserve as confidential all non-publicly available information related to the business and activities of both Parties, their members, suppliers and other entities with whom the Parties do business or with whom they are associated, that may be obtained by the Parties from any source or may be developed as a result of the Agreement.
10.2 The Parties agree to hold such information in trust and confidence and shall not disclose such information to any person, firm or enterprise, or use (directly or indirectly) any such information for its own benefit (other than for purposes of the Agreement) or the benefit of any other Party, unless authorized by the other Party in writing.
Information is not confidential to the extent it is: (i) already known by a Party free of restriction when obtained; (ii) rightfully obtained from an independent third party free of restriction; or (iii) available publicly. The obligation included in this article shall be retained by the Parties after termination of the Agreement for whatever reason.
11.1 If any provision of the present Terms and Conditions (or part of any provision) is found by any court or other authority of competent jurisdiction to be invalid, illegal or unenforceable, that provision or part-provision shall, to the extent required, be deemed not to form part of the present Terms and Conditions, and the validity and enforceability of the other provisions of the present Terms and Conditions shall not be affected. In the foregoing case the parties shall negotiate in good faith to amend such provision such that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the Parties’ original commercial intention.
11.2 Unlike INCIZE, the Client may not assign the Agreement nor any of its rights or delegate any of its duties under it without the written consent of INCIZE.
11.3 Any amendments to the Agreement, as well as any additions or deletions, must be agreed in writing by both Parties and sent to a Party at its known address.
11.4 No failure or delay in exercising any right, option or remedy, enforcing any obligation or requiring performance, shall impair or be construed as a waiver or on-going waiver by INCIZE of that or any other right, option or power of INCIZE, unless in writing signed by INCIZE.
11.5 No breach by the Client of any provision of the Agreement shall be waived or discharged except with the express written consent of INCIZE.
11.6 The liability of a Party can not be retained under these Terms and Conditions, in case of abnormal and unforeseeable circumstances beyond the control of the Party by whom it is pleaded, the consequences of which, despite all precautions could not be prevented.
11.7 Each form of delivery of the Services, by post or electronic, shall be at risk of the designated Party.
11.8 INCIZE is allowed to refer to the rendered Services, goods and performance with the appointment of the Client for marketing or promotional purposes on INCIZE’s website or otherwise.
11.9 INCIZE preserves the right to partially or entirely modify the present Terms and Conditions governing the Agreement at any time. Changes will apply to all future (and past) orders, except expressly stated otherwise.
12. Applicable law and competent court
The present Terms and Conditions shall be governed by and construed in accordance with the laws of Belgium. Any dispute or controversy relating to these present Terms and Conditions can only be brought in the exclusive jurisdiction of the Brussels’ courts and each Party consents to the exclusive, personal jurisdiction of such courts.