Specific Terms and Conditions: an agreement subject to the present General Terms and Conditions describing the specific stipulations for the execution and performance of the present Agreement.
Services: the services which will be provided to the Customer in accordance with the Agreement as stated in the Specific Terms and Conditions.
Agreement: the present General Terms and Conditions and the Specific Terms and Conditions. The present Agreement includes all and any rights and obligations between the Parties with regard to the Services and shall take precedence over and supersede any and all prior agreements and offers, issued both orally and in writing.
BIG INDUSTRIES: BIG INDUSTRIES N.V., having its registered office in Kontich (Belgium), Veldkant 33A, Company Registration Number 0807.729.292
The Customer: the Customer as stated in the Specific Terms and Conditions.
The Provider: the Provider of the services as stated in the Specific Terms and Conditions who will be contracted or commissioned by BIG INDUSTRIES to carry out the services described in the present Agreement.
Party (Parties): BIG INDUSTRIES or (and) the Customer.
BIG INDUSTRIES hereby agrees to carry out the Services as stated in the Specific Terms and Conditions for the Customer.
Barring any stipulations to the contrary in the Specific Terms and Conditions, the Services will be carried out at the premises and site of the Customer as specified in the Specific Terms and Conditions.
The duration of the Agreement is specified in the Specific Terms and Conditions.
Any conditions and terms for the termination of the Agreement are specified in the Specific Terms and Conditions.
At the latest 4 weeks before the end of the current term, the Customer will send BIG INDUSTRIES a written request to ask for an extension of the Agreement. If BIG INDUSTRIES agrees to such an extension of the present Agreement, BIG INDUSTRIES will inform the Customer about this decision. Barring any stipulations to the contrary, a possible extension of the Agreement shall be granted under the same conditions as the initial Agreement.
Without prejudice to its right to damages, BIG INDUSTRIES, at its own discretion, is entitled to suspend the execution of the Agreement or even to annul the Agreement by operation of law, without notice of default and with immediate effect by merely sending a registered letter by regular mail:
- in case the Customer does not pay on any of the due dates or does not comply with any of the contractual obligations;
- in case the Customer has filed for a postponement of payment, or has filed for bankruptcy or has suspended any or all payments, or in case his solvency has been undermined or if the Customer has unmistakably become insolvent;
- in case the Company of the Customer is dissolved and/or liquidated;
- in case a writ of attachment for execution and/or protection purposes has been served on all or part of the Customer's assets at the request of a creditor, or in case any other executive or protective measures have been taken with regard to the Customer's assets;
- in case there is evidence or a serious suspicion of fraud committed by the Customer;
- in case the Customer refuses to submit the information requested or if the Customer has submitted incorrect and/or false information;
In case of any faults or contractual shortcomings other than the ones mentioned above, BIG INDUSTRIES is entitled to terminate the present Agreement if the Customer does not correct or rectify its fault or contractual shortcoming within a period of 15 days after the day BIG INDUSTRIES has issued a registered letter declaring the Customer to be in default.
Unless the Agreement is dissolved and/or terminated due to gross negligence of BIG INDUSTRIES, all of the services delivered for the components as yet not completed at that moment shall be compensated for and paid at the current average hour rates set by BIG INDUSTRIES; without prejudice to BIG INDUSTRIES' right to provide evidence for any actual damages suffered, using any legal means possible, if such compensation for damages proves to be a higher amount than the hour rates charged
Unless agreed otherwise, BIG INDUSTRIES shall confer to the Client, in a comprehensive, definitive and exclusive manner, all the intellectual property rights vested in the works created or yet to be created in performing its services, as of the moment at which these rights come into existence, and this in the most comprehensive manner and in respect of every possible form and mode of exploitation, for the entire duration of the right(s) in question and on a worldwide basis.Notwithstanding the above, BIG INDUSTRIES shall in any event not be precluded from using its general knowledge, skills, experience and any ideas, concepts, methodologies, processes and know-how that are developed, acquired or used in the performance of its services or created by BIG INDUSTRIES in the course of performing its services, except to the extent this would result in a breach of BIG INDUSTRIES’ confidentiality undertakings towards the Client.
Confidential information refers to all information, regardless its type and category (oral, written, graphic, digital, ...), which is or has been exchanged between the Parties in accordance with and with respect to the present Agreement.The Parties and their employees are required to treat any confidential information which they have received from the other Party with regard to the execution of the present Agreement as confidential. Furthermore, the Parties shall only use this confidential information in accordance with the present Agreement. The Parties are not allowed to disclose this confidential information to any third parties without the prior and written approval of the other Party.This obligation of confidentiality shall remain in force during a period of 1 year following the end of the present Agreement, regardless of the reason why the Agreement was terminated.
The following information shall not be considered to be confidential:
- any information received in a legal way from any third party which is not bound by any obligation of confidentiality or secrecy;
- any information already known to a Party before this information was submitted to the Party in accordance with the execution of the present Agreement;
- any information which a Party has generated itself without breaching the conditions of the present Agreement;
- any information which is considered to be public domain without the intervention of or an error committed by the Party which has received this information;
- any information which is instructed to be made public due to a court order.
BIG INDUSTRIES is also entitled to include the Customer in its reference list of customers, to publish a summarized description of the assignment, and to use the name and the brand name of the Customer for advertisement purposes and public relations incentives.
With regard to the execution of the present Agreement, BIG INDUSTRIES will assign a Provider.
The Customer will provide Big Industries with all information, technical or general documentation, or any other details and records with respect to the assignment. The Customer hereby acknowledges not to engage in any kind of co-operation with the Provider for the term of the duration of the present Agreement and during a period of one year following the termination of the Agreement; in case of a violation of this condition, the Customer will be obliged to pay a fine of 180 times the daily rate charged by the Provider as stated in the Specific Terms and Conditions. Should both Parties deem it to be desirable or necessary, they may assign, by mutual agreement, either temporarily or permanently, another Provider to carry out and execute the present Agreement.
In case the Provider does not meet (or no longer meets) the specified requirements; If the Customer's reputation is discredited by the Provider; Or if the Provider does not carry out (or no longer carries out) the Services in accordance with the present Agreement, the Customer will have the right to ask BIG INDUSTRIES to choose another Provider. However, such measures shall not relieve the Customer of its obligation to compensate and pay for any Services already carried out by the Provider.
If BIG INDUSTRIES agrees to choose another Provider, it will make sure the Customer will be provided with a substitute Provider at the earliest opportunity. In case BIG INDUSTRIES does not succeed in providing the Customer with a qualified substitute Provider within a period of two weeks, the Customer shall be entitled to terminate the present Agreement.
In case, during the term of the present Agreement, the specifications as regards to the content for the execution of the present Agreement are changed, the Customer will compensate BIG INDUSTRIES for any required further training of the Provider. If the Customer provides the Provider with its own training courses, the costs for these training courses shall be paid by the Customer, unless stated otherwise in the Specific Terms and Conditions.
BIG INDUSTRIES shall notify the Customer in time in case there are any planned interruptions of the execution of the Services.
The Customer hereby acknowledges to pay a fee equal to the number of actual working (hours or) days, multiplied by the rates as stated and agreed upon in the Specific Terms and Conditions. These fees do not include VAT, nor any other taxes or duties imposed by government authorities. Unless stated otherwise in the Specific Terms and Conditions, these fees do include moving and transport time and/or expenses.
These rates may be adapted by BIG INDUSTRIES on an annual basis on the expiry date of the Agreement, based on the following calculation formula:
New rate =
Basic rate * (0.2 + 0.8 * New index )/Initial index
Basic rate: the rate at the start of the Agreement;
Initial index: the “national average salary costs” reference index as published by Agoria for the month preceding the date on which the Agreement is signed;
New index: the “national average salary costs” reference index as published by Agoria for the month preceding the expiry date of the Agreement.
With respect to the execution of the Services, BIG INDUSTRIES will commit itself to adapt to and plan in accordance with the working hours schedule of the Customer. Unless stated otherwise in the Specific Agreement, the working hours schedule shall consist of 38 hours per week.
If more than 38 working hours are to be performed, the following rate increase shall be charged (not combined):
- Hours worked > 38 hours/week: + 50%
- Hours worked between 10 PM and 7 AM: + 100%
- Hours worked on Saturdays: +50%
- Hours worked on Sundays or legal public holidays: + 100%
The Provider will make sure his working hours sheet is signed by the Customer for approval, using the appropriate working hours account forms.
Every month, BIG INDUSTRIES shall send an invoice to the Customer stating the fees as stated above.
All invoices become payable 30 days following the invoice date, unless stated otherwise in the Specific Terms and Conditions. In the absence of a written letter of protest for an invoice, which needs to be sent within a period of 8 working days following the mailing date of the invoice, the invoice and all services stated on the invoice are considered to be irrevocably accepted and approved. As the payment term expires, the Customer shall legally and without any prior notification or reminder be declared to be in default. When the payment term has expired, the Customer shall be obliged to pay a conventional moratory interest equal to the interest rate as stipulated in Article 5 of the Law on Payment Arrears (the Law of August 2nd, 2002, published in the Belgian Official Gazette on August 7th, 2002), increased with 3%.
Furthermore, for each unpaid amount the Customer shall also be obliged to pay fixed damages to the amount of 15% for the first installment of 4,000 EUR, 10% for the second installment of 4,000 up to 12,500 EUR, and 7.5% for any installment exceeding 12,500 EUR; without prejudice to the BIG INDUSTRIES' right to claim additional damages for any judicial and legal collection charges.
BIG INDUSTRIES retains the right to claim a higher amount for damages if it can provide evidence for any higher damages it has actually suffered.
If, at the sole discretion of BIG INDUSTRIES, the Customer's solvency situation causes more than a reasonable doubt, BIG INDUSTRIES is entitled to ask the Customer, even after the Agreement has been closed, to provide the collateral as requested by BIG INDUSTRIES for the payment of any Services still to be carried out, and BIG INDUSTRIES has the right to postpone the execution of these Services as long as the requested collateral has not been provided.
BIG INDUSTRIES shall carry out the assignment in accordance with the present Agreement to the best of its ability, and BIG INDUSTRIES will take into account any instructions and directives BIG INDUSTRIES receives from the Customer.
Because BIG INDUSTRIES, in accordance with the present Agreement, will be carrying out activities which constitute a part of the Customer's specific projects, only the Customer shall be held fully liable and responsible for these projects.
With respect to the present Article, 1) any company which is an affiliated company in accordance with Art. 11 of the Company Law Code or any other company of the group, and 2) any employee or self-employed person who is commissioned or contracted by BIG INDUSTRIES or any legally equal and equivalent company to execute and carry out the Services, shall be considered to be legally equal and equivalent to BIG INDUSTRIES.
Any liability to which BIG INDUSTRIES may be held, shall ensue from an agreement of performance, and needs to be solidly substantiated by the Customer.
BIG INDUSTRIES shall only be held liable to restore any direct damages it has caused, as a result of the specific activities carried out by BIG INDUSTRIES as stipulated in the present Agreement, this however limited to the amount indebted by the Customer for the specific service or, if the specific services run over several years, the amount indebted by the Customer for the specific services in the twelve (12) months preceding the event giving rise to liability, except in case of misconduct or fraud, regardless of whether the claim was issued on a contractual basis or on a non-contractual basis.
BIG INDUSTRIES cannot be held liable for the following issues:
- any compensations to be paid by BIG INDUSTRIES for any indirect damages or consequential damages, including financial or commercial loss, loss of profit, an increase of overall expenses, any delays in planning, loss of expected profit, investments, customer base, etc.;
- any damages due to an error committed by the Customer;
- any compensations for any and all direct and indirect damages due to the use of the delivered Product;
- any compensations for damages fully or partly caused by the software or hardware delivered or produced by third parties, or by any other asset at the premises of the Customer's company, or which may have been introduced at the premises of the Customer's company after the Agreement was closed;
- all claims submitted by third parties against the Customer.
In case, after their delivery, the developed components shall be used to continue their development or for commercialization, the Customer shall safeguard BIG INDUSTRIES against any claims for damages submitted by third parties, even if it appears that the cause of these damages may originally be attributed to the Services delivered by BIG INDUSTRIES.
These liability limitations shall remain in force even if BIG INDUSTRIES was notified by the Customer that there is a real and actual risk of damages. The Parties hereby acknowledge that this is a reasonable way of sharing the risks.
The present Agreement shall be governed by Belgian law. In case of any disputes with regard to the execution and/or interpretation of the present Agreement, only the Court of Commerce of Antwerp (Belgium) shall be considered to be competent. The Customer can only issue a claim with respect to the services provided within a period of 6 months following the incident which may give cause to such a claim or if the Customer, within a period of one month after the incident has notified BIG INDUSTRIES about it.
The present Agreement, nor any of its ensuing rights or obligations, can be transferred, fully or partly, without the explicit and written approval and consent of both Parties.
BIG INDUSTRIES is entitled to contract or commission subcontractors for the execution of the present Agreement. Contracting or commissioning a subcontractor shall always occur under the responsibility of BIG INDUSTRIES and shall by no means result in any additional costs for the Customer whatsoever.
BIG INDUSTRIES and the Customer shall each appoint their own representative, as stated in the Specific Terms and Conditions. These representatives shall meet at regular intervals in order to set up a schedule and planning, and to supervise the execution of the Agreement.
If one of the stipulations of the present Agreement proves to be invalid or void, this can by no means have an influence on the general validity and legitimacy of the other stipulations, despite the fact that the contested clause is invalid and void. The Parties, by mutual agreement, shall take all measures possible to have the invalid stipulation replaced by a valid and legitimate stipulation with the same or largely the same economic effect as the invalid stipulation. If no claim is submitted for a specific right or if no sanction is imposed by one of the Parties, this by no means will constitute a waiver of these rights.
In case of a contradiction between the General Terms and Conditions and the Specific Terms and Conditions, the Specific Terms and Conditions shall take precedence.
BIG INDUSTRIES carries out the present Agreement at its own free will and as an independent party. There will be no hierarchic relationship between BIG INDUSTRIES and the Customer, nor between the Customer and the Providers as contracted or commissioned by BIG INDUSTRIES.
Regardless of the type and/or financial value of the legal act to be substantiated, BIG INDUSTRIES is at all times entitled to substantiate this act based on the following additional evidence: a copy or reproduction, whatever its type and format (carbon copy, photocopy, microfilm, scan, …), transmitted using a storage medium or by fax, telex, and e-mail.
Any such evidence material shall have the same evidential value as any private agreement drawn up and signed in accordance with the stipulations of the Civil Code.