General terms and conditions – AG Solution

1. General– Scope of application
   1. Subject to any special conditions contained in a separate written agreement, these general terms and conditions apply to every offer, quotation or agreement between AG Solution NV, with its registered office at 2610 ANTWERP, Moerelei 125 bus201, registered in the Crossroads Bank for Enterprises under file reference number 0464.066.806 (“AG Solution”) and its customer (the “Customer”).
   2. In the event of any conflict between these terms and conditions and any separate written agreement, the provisions of the separate written agreement will prevail.
   3. Any purchase order placed by the Customer with AG Solution implies prior knowledge and acceptance of these general terms and conditions and expressly excludes the application of the Customer's own terms and conditions.
2. Purchase Order – Payment Method
   1. The Customer places a purchase order with AG Solution by signing a purchase order form that still has to be accepted by AG Solution.
   2. An agreement between AG Solution and the Customer will only be concluded after an order confirmation or other written agreement has been signed by the legal representatives of AG Solution (the “Agreement”).
   3. The services provided by AG Solution are invoiced monthly. For fixed-price projects, the agreed terms are settled according to delivery or according to the agreed percentages of completion.
   4. Payment must be made within 30 days of the invoice date. Failing this, default interest equal to 8% of the outstanding amount will be due by operation of law and without prior notice of default. In addition, fixed compensation equal to 10%of the amount due will be payable, subject to a minimum of € 1,000.00.
   5. Any disputes regarding invoices must be submitted to AG Solution by registered letter within 8 days of receipt of the invoice.
   6. In the absence of payment of a single overdue invoice, all other invoices from AG Solution sent to the Customer will become immediately due and payable in full, even if the due date has not yet passed.
   7. The possibility of set-off is excluded. The Customer may not therefore rely on the existence of alleged reciprocal claims to avoid payment of AG Solution's outstanding invoices.
3. Services
   1. AG Solution undertakes to provide its services in accordance with generally accepted industry standards and will use reasonable care and skill in performing its services.
   2. AG Solution will provide its services as set out in the Agreement with complete independence and will plan its activities at its discretion. This independence is an essential and necessary element of the Agreement. Without this independence, the parties would not have entered into the Agreement. In no event will the Agreement be construed as a contract of employment between AG Solution (or the person assigned by AG Solution) and the Customer.
   3. AG Solution will provide the services through the person(s) or profiles identified in the Agreement. During the performance of the Agreement, AG Solution reserves the right to reallocate or replace its personnel resources, at its sole discretion.
4. Delivery and performance deadlines
   1. The subject matter of the services provided by AG Solution is defined in the order confirmation or other written agreement.
   2. The Client will enable AG Solution to provide the services in a timely and correct manner by, on the one hand, providing all necessary information in a timely manner and, on the other, by making the necessary facilities available.
   3. All specified performance deadlines are always indicative and will be adhered to by AG Solution to the best of its ability. Merely exceeding the performance deadline does not entitle the Customer to compensation.
5. Cancellation, termination and dissolution
   1. In the event of premature, unilateral termination of the agreement by the Customer, AG Solution will be entitled to claim fixed compensation amounting to20% of the agreed price for the services that can no longer be provided by AG Solution, without AG Solution having to prove the actual damage or loss suffered and without prejudice to AG Solution's right to invoice the Customer for services provided under the agreed conditions to date. AG Solution reserves the right to claim higher compensation if the actual damage or loss suffered exceeds the aforesaid fixed compensation.
   2. In the event of cancellation of an order by the Customer before the start of the performance of the agreement and/or impossibility of delivery of the services of AG Solution due to the fault of the Customer, AG Solution will be entitled to claim fixed compensation amounting to 20% of the agreed price for the services that cannot (or no longer) be provided by AG Solution, without AG Solution having to prove the actual damage. AG Solution reserves the right to claim higher compensation if the actual damage or loss suffered exceeds the aforesaid fixed compensation.
   3. If the Customer fails to comply (in a timely manner) with one or more obligations under the general terms and conditions or in the event of bankruptcy, apparent insolvency or cessation of activities on the part of the Customer, AG Solution has the right to suspend the performance of the agreement in whole or in part or to dissolve the agreement out of court without prior notice of default, without prejudice to AG Solution's right to additional compensation.
6. Liability
   1. AG Solution will provide its services with the expertise, professionalism, care and attention that can reasonably be expected from a similar service provider under the same circumstances.
   2. The warranty contained in this clause is expressly in lieu of all other representations and warranties, express or implied, including any implied warranties of suitability for a particular purpose, merchantability or otherwise. AG Solution expressly disclaims any warranty as to the accuracy or completeness of data, operational criteria or parameters provided by the Customer, as well as any liability for infringement of third-party intellectual property rights.
   3. In the event and to the extent that AG Solution provides services in relation to third-party software and products, AG Solution disclaims all warranties and liability with respect to such third-party software and products.
   4. Subject to any mandatory provisions to the contrary, AG Solution will only be liable for damage or loss caused by failure to fulfil its obligations arising from the agreements to which these general terms and conditions apply.
   5. AG Solution acts as an advisor and implementation partner for the Customer. Given that the Customer ultimately decides which advice is followed and which is not, and given the rapidly evolving nature of cyber technologies, AG Solution cannot be held liable for any breaches or consequences arising from cyber incidents.
   6. If AG Solution is liable for any damage or loss, then its liability will at all times be limited to a maximum of the invoice amount of the Customer's order to which the liability relates.
   7. Any claim relating to the services provided must be submitted to AG Solution by registered letter within 2 days of becoming aware of the claim giving rise to any liability.
   8. In any case, AG Solution can only be held liable for direct damage or loss. AG Solution can never be held liable for indirect damage or loss, including, but not limited to, consequential damage or loss, lost profits, missed savings or damage or loss to third parties.
   9. AG Solution can never be held liable with regard to the information and data made available to it by the Customer. Nor can AG Solution be held liable for damage to or loss of data by the Customer.
   10. If as a result of force majeure, external cause, error by a third party and/or the Customer, accident, strike, technical breakdown, weather conditions, etc. AG Solution is unable to fulfil its obligations under the agreements to which these general terms and conditions apply, or if it is unable to fulfil them in a timely or proper manner, AG Solution will have the option to suspend the performance of the agreement for as long as the circumstances persist, or to terminate the agreement by means of written notice to the Customer, without this giving rise to any right to compensation for the Customer under the Agreement.
   11. To the maximum extent permitted under applicable law, the Customer agrees and accepts not to hold AG Solution's directors, contractors, subcontractors, representatives, appointees, consultants, employees and other agents personally liable for or in connection with the Agreement. Any (liability) claim for or in connection with the Agreement(including any non-contractual liability claim) must be brought exclusively by the Customer against AG Solution.
   12. The Customer must indemnify and hold AG Solution (and its directors, contractors, subcontractors, representatives, appointees, consultants, employees and other agents) harmless from and against any claim or demand made or asserted by a third party in respect of any act or alleged omission by or on behalf of AG Solution under the Agreement.
7. Responsibilities of the Customer – Collaboration with AG Solution
   1. The Customer is responsible for the security of the system (equipment, hardware and software, etc.). The Customer will make copies of the data (backup) and store these separately, so that loss of data and/or other information is not possible. AG Solution is not responsible for the loss of data and/or other information of the Customer.
   2. The Customer must provide any device or hardware with the necessary protection. AG Solution is not liable for any damage or loss suffered by the Customer due to the lack of adequate security. Furthermore, the Customer warrants that all devices, hardware, software and other operating assets used by it have been legally obtained and used by it. The Customer holds all rights to this and indemnifies AG Solution in this regard.
   3. The Customer is obliged to strictly comply with the legislation concerning intellectual property rights to software and other data developed and/or provided by third parties. The Customer warrants that AG Solution does not infringe any third-party intellectual property rights when performing its services and the Customer indemnifies AG Solution against all third-party claims, directly or indirectly, due to infringement of the intellectual property rights of these third parties.
   4. The Customer acknowledges and agrees that in order to enable AG Solution to provide the services in an appropriate, timely and efficient manner, the Customer must cooperate with AG Solution by (i) making available all necessary information, approvals and consents; and (ii) providing timely and appropriate access to the Customer's facilities, personnel, equipment, resources and systems, including its proprietary or licensed software, tools, data, databases and methods, and all other relevant documentation and information (such documentation and information must be accurate and complete), as required by AG Solution to adequately perform its services.
   5. In this context, the Customer acknowledges and agrees that (i) the services will be provided by AG Solution using the software resources of a third party (as agreed between the parties) and that the Customer will be responsible for procuring sufficient licences for such software from any party and (ii) that the services may require the Customer to have or obtain, at the Customer's expense, appropriate hardware, networks, operating systems and data transfer cables, combined with the appropriate communication software and/or other software from a third party.
8. Customer Data
   1. If Customer Data is provided to AG Solution for the purpose of providing the services, all Customer Data (including any Intellectual Rights thereto) will remain the property of the Customer. "Customer Data" is taken to mean all data owned or held by the Customer and which is made accessible or provided by the Customer to AG Solution in the performance of the Agreement.
   2. The Customer hereby grants AG Solution a non-exclusive license to copy, reproduce, store, export, adapt, edit or translate the Customer Data to the extent reasonably necessary for the performance of AG Solution's obligations under the Agreement.
9. Data Protection
   1. Each party must comply with its obligations under the applicable data protection legislation when processing personal data. In particular, the Customer consents and agrees to obtaining the consent of its Customers and/or personnel to hold and process the personal data provided to AG Solution for all purposes related to the performance of the Agreement.
10. Non-recruitment
    1. If the Customer hires an employee of AG Solution for a period of two (2) years after completion of the services provided by AG Solution, the Customer must pay AG Solution an amount of one hundred thousand(100,000) euros at the time the contract between the employee and the Customer is formalised. This clause is essential for AG Solution given the investment made in the training of employees and the knowledge and know-how of the company acquired by them (employees). The parties therefore agree that the aforesaid fixed compensation is proportionate to the damage or loss suffered by AG Solution in the case in question, without prejudice to the right of AG Solution to claim higher compensation if the actual damage or loss suffered exceeds the aforesaid fixed compensation.
11. Intellectual Property
    1. AG Solution (or its licensors) retains all rights, titles and interests, including all Intellectual Property Rights, in and to (i) its Confidential Information,(ii) its pre-existing IPR and know-how, including all modifications and improvements thereto (hereinafter collectively referred to as the "AG Solution IPR"). For the purposes of this Article, "Intellectual Property Rights" is taken to mean trademarks, trade secrets, rights in computer programs (both in object and source code), design rights, database rights, proprietary rights in know-how, trade names, and all other rights or forms of protection of a similar nature or having an equivalent or similar effect to any of the foregoing, wherever in the world they may exist, and any other intellectual, industrial or proprietary right in any country, irrespective of any existing or future applications for or registrations of such rights. "Confidential Information" of a party is taken to mean the information disclosed by a party under the Agreement, whether in written, electronic or any other form and which (i) is expressly marked as confidential or protected by a proprietary right, (ii) should reasonably be considered to be confidential, or (iii) would normally be regarded to be confidential, whether or not expressly marked as such, and includes, but is not limited to, materials, papers, databases, drawings, diagrams, calculations, figures, procedures, processes, business methods, contracts (including the Agreement),financial, technical and legal information, budgets, sales marketing, public relations, advertising and commercial plans, ideas, strategies, projections, business plans, strategic expansion plans, products and product designs.
    2. The Customer agrees to (i) exclusively use the AG Solution IPR as permitted inwriting in the Agreement and subject to the Customer's general obligation to comply with the applicable legislation, (ii) not to remove any reference to the AG Solution IPR, (iii) not to sell, transfer, rent, lease, grant access to or sublicense the AG Solution IPR to third parties, (iv) not to modify or adapt the AG Solution IPR, (v) not to reverse engineer, disassemble, decompile or attempt to derive source code from the AG Solution IPR, and (iv) not to create derivative works from the AG Solution IPR.
    3. The Customer is not entitled to make any improvements, modifications, derivative works or other additions to the AG Solution IPR. However, notwithstanding any prohibition thereto, any improvements, modifications, derivative works or other additions made by the Customer to AG Solution IPR will belong exclusively to AG Solution and be considered part of the AG Solution IPR. The Customer must immediately assign such rights, titles and interests, including any Intellectual Property Rights, in or to any such improvements, modifications, derivative works or other additions to the AG Solution IPR to AG Solution, at no cost to the latter. Nothing in this Agreement will restrict AG Solution from using such improvements, modifications, derivative works or other additions for its own benefit or that of third parties.
    4. Subject to the terms and conditions of the Agreement and upon timely and full payment of all fees under the Agreement, all data and results resulting from (i) AG Solution's services or (ii) the Customer's use of AG Solution IPR (other than the AG Solution IPR itself) (the "Results"), will become the exclusive property of the Customer and be treated as Customer Data (as defined in the Agreement).
    5. Notwithstanding provisions in the Agreement to the contrary, AG Solution has the right to use ideas, concepts, methods, processes and know-how developed or created during the performance of the Agreement. Nothing in the Agreement prevents AG Solution from acquiring, developing, providing or using, for itself or others, services or products that have the same or similar functions as the services provided and deliveries made to the Customer under the Agreement, except to the extent that such use would be in breach of AG Solution's confidentiality obligations under the Agreement.
12. Confidentiality
    1. Each party will treat as confidential and maintain the confidentiality of all Confidential Information relating to the other party and refrain from disclosing any Confidential Information to any third party, other than to its agents, officers, employees, professional advisors, insurers, subcontractors or consultants where such disclosure is necessary for the performance of the Agreement, except with the prior written consent of the disclosing party. Confidential Information disclosed under the Agreement may not be used by the recipient thereof for any purpose other than to perform its obligations under the Agreement.
    2. Both parties will take precautions to maintain the confidentiality of the Confidential Information and agree that they will: (a) not copy or otherwise utilise any part of the Confidential Information other than as provided herein, nor make any disclosures with respect thereto to third parties, (b) promptly notify the other party upon becoming aware of any breach of confidence and provide the other party with all reasonable assistance in connection therewith.
    3. The provisions of this clause do not apply to information that: (a) is published or has become public other than through a breach of the Agreement, (b) was known to the receiving party prior to its disclosure by the disclosing party, (c) was lawfully obtained from a third party, or (d) was created by the receiving party independently of disclosure and other than as part of the project within the scope of the Agreement.
    4. The limitations in this clause do not apply if Confidential Information is required to be disclosed pursuant to legislation or regulation, judicial or governmental orders, or requests. In that case, the parties will cooperate in good faith to ensure the protection of such Confidential Information to the extent permitted by law.
    5. The receiving party will cease using the disclosing party's Confidential Information and, upon termination of the Agreement, return all documents (or copies thereof) to the disclosing party.
    6. The provisions under this title will remain in force for five (5) years following termination of the Agreement.
    7. The Customer will be liable for the failure of its personnel, subcontractors or representatives to comply with the obligations set out under this title.
13. Miscellaneous
    1. If any provision (or part thereof) of these general terms and conditions should be unenforceable or conflict with a provision of mandatory law, it will not affect the validity and enforceability of the other provisions of these general terms and conditions, nor the validity and enforceability of any part of the relevant provisions that is not unenforceable or in conflict with a provision of mandatory law. In that case, the parties will negotiate in good faith to replace the unenforceable or conflicting provision with an enforceable and legally valid provision that is as close as possible to the purpose and intent of the original provision.
    2. AG Solution is entitled to use the Customer's name on its website and in other publicity, after having notified the Customer.
    3. The Customer undertakes to regard as confidential all information and data concerning AG Solution and its services, of which it becomes aware in the context of the agreement.
    4. All agreements to which these general terms and conditions apply, as well as all other agreements resulting therefrom, are governed exclusively by Belgian law, with the express exclusion of the Vienna Sales Convention (UN Vienna Convention of 11 April 1980 on Contracts for the International Sale of Goods or the "CISG").
    5. All disputes between AG Solution and the Customer relating to agreements to which these general terms and conditions apply fall exclusively within the jurisdiction of the courts of the district and/or subdistrict of Antwerp.