General Terms and Conditions

Services

The goods and services that the Service Provider shall provide to the Customer on a basis, as described in the Specific Agreement such Service Contracts, Purchase Orders and signed offers. These Services are at all times governed by the present Master Service Agreement and/or as well as the specific terms and conditions of the Specific Agreement.

Service Provider

COSA Consulting BV, with official seat located in Belgium, 2560 Kessel, Terlakenweg 19, under number 1004.759.058.

Customer

Means the service, institution, partnership, association or organization designated as such in the Agreement.

Force Majeure Event

Any event or circumstance beyond the reasonable control of a Party that adversely affects the performance of any of its obligations under the Agreement, including but not limited to acts of God, fire, epidemic, pandemic, flood or other catastrophes; acts of government (including refusal or revocation of any license or consent) or public enemy; national emergencies, insurrections, riots, war or acts of war or terrorism; industrial disputes except strikes held by either Party's Employees; and any legislative or regulatory restrictions or prohibition on trade imposed by national or international body or authority, or any change thereof.

Party(-ies)

Service Provider and/or the Customer.

Agreement

These General Terms and Conditions and the Specific Terms and Conditions specified within an underlying Service Contract, Purchase Order or signed Offer.

Specific Agreement

An agreement, such as a Service Contract, Purchase Order or signed Offer, subject to these General Terms and Conditions and describing the specific performance modalities and details of the services.

1. The Service Provider undertakes the obligation to perform the Services for the Customer.

2. The Service Provider shall perform its task within the framework of the performance of this Agreement to the best of its ability and will take into account the technical instructions and guidelines it receives from the Customer

3. The Parties acknowledge and accept that the success of performance of this Agreement depends on timely cooperation. The Customer shall at all times promptly grant all reasonable cooperation desired by the Service Provider.

4. Insofar as the Specific Agreements do not refer to any other capacity of the Customer, the Customer is irrevocably deemed to be a professional user acting in the context of its professional activities.The Customer is deemed to possess the relevant knowhow in relation to the Services to be provided, and to engage personnel with the relevant expertise.

5. The Service Provider shall act as an independent contractor at all times during the performance of the Services. The Service Provider’s employees shall act under the Service Provider’s sole control and responsibility. The Customer shall not have nor exercise any actual, potential or other control over Service Provider or its employees. The Service Provider has no authority to give instructions to Customer’s personnel, nor to any third party with whom Customer has entered or will enter into an agreement of whatever nature. The Service Provider shall have no power of authority to act for, bind or commit the Customer, unless the Customer has granted prior written proxy to it.

1. The Services will be performed on a time and material basis.

2. The Customer undertakes the obligation to pay a fee equal to the number of effectively performed units (days, months,...) times the rates agreed in the specific Agreement.

3. The fees are exclusive of VAT and any other levies imposed or to be imposed by the government.

4. The fees charged for additional Services performed outside of the normal business hours are stipulated as follow, unless specified otherwise in the specific Agreement:

   • Performance on Saturday: +50%

   • Performance on Sundays and Public Holidays: +100%

   • Performance between 22:00 and 07:00: +50%

1. The Service Provider shall invoice the Customer for the fee referred to above on a monthly basis (or more or less frequently as may be specified in the applicable Specific Agreement).

2. The payment term will commence with the receipt of the complete invoice. All invoices must be paid by the Customer within thirty (30) calendar days following the date of invoice, unless specified otherwise in the Specific Agreement.

3. Payments must be made in euro, through bank transfer on the bank account of which the bank account number is mentioned on COSA Consulting's invoice, including the required references. Payment through set-off is never possible.

4. In the event of the Customer disputes an invoice, Customer shall promptly seek to resolve the dispute through mutual discussion and shall pay in accordance with the provisions of this article  the part of the invoice that is not disputed. The Service Provider shall in case of bona fide dispute not be entitled to withhold or delay any Services or provision deliverables.

5. The absence of a protest of an invoice in writing thirty (30) business days from the date of sending of the invoice constitutes irrevocable acceptance of the invoice and the Services set out within it. 

6. In the event of failure to pay  any undisputed amounts by their due date, the following shall apply after prior written notice of default, to the outstanding amount due on the due date of the invoices until payment thereof:

   • all amounts due are immediately payable, regardless of the agreed payment terms;

   • a late payment interest of 1% per month is due on the outstanding amount, with a minimum of 25 euro, increased with a fixed compensation of 10% of the outstanding amount, whereby each month started counts as a complete month. Furthermore, COSA Consulting shall be entitled to suspend all services under the terms of the present Agreement until all outstanding invoices in relation to this Agreement have been settled.

7. In case of a delay in payment, and even in case of a partial delay in payment of any undisputed amount, of more than thirty (30) calendar days, COSA Consulting reserves the right to terminate the Agreement in accordance with articles "Termination for cause", without prejudice to the other rights of COSA Consulting under the Agreement and/or applicable law.

8. In case doubts arise as to the solvency of the Customer, for instance in case of non-payment of invoices, COSA Consulting is entitled to require payments in advance, or to ask for guarantees for the Provision of Services still to be provided. In case such guarantee will be requested by COSA Consulting, the form of guarantee as well as its specific conditions will be determined between Parties at the time of the request, in the absence of which COSA Consulting is entitled to terminate the Agreement in accordance with article "Termination for cause".

1. The agreement enters into force on the Effective Date for an indefinite period, or period defined in the Specific Agreement, such as a Service Contract, Purchase Order or signed Offer.

2. Either Party may terminate this Agreement for convenience by giving at least three (3) months' prior written notice.

3. Either party (Terminating Party) may immediately terminate this Agreement for cause by written notice to the other party if the other party (Defaulting Party):

   • breaches the Agreement in a material respect and, in the reasonable opinion of the Terminating Party, the breach cannot be remedied; or

   • can be remedied, but is not remedied by the Defaulting Party within 14 days after the Terminating Party gives the Defaulting Party notice of the breach; or

   • becomes Insolvent.

1. The liability that the Service Provider may incur is derived from a best effort obligation that in cases of claim must be appropriately demonstrated by the Customer.

2. Insofar as maximally permitted by applicable law, the total liability of the Service Provider based on attributable failure in the fulfilment of the Agreement is limited to the reimbursement of direct damages up to a maximum of the compensation owed by the Customer for the specific Services that gave rise to the damages (excluding VAT). If the services extend over multiple years, then for the compensation of direct damages the Service Provider may be held to a maximum of the value of the amounts invoiced for the performance of this Agreement for the specific Services (excluding VAT) over a period of twelve (12) months prior to the date that the damages-causing event occurred. Under no circumstances shall the total liability for all direct damages during the entire duration of the Agreement exceed the fee paid by the Customer for the specific Services (excluding VAT).

3. Each Party must inform the other Party in writing of any event that may call upon the latter's liability or of any disadvantage the informing Party suffers within the shortest possible time and at the latest within fifteen (15) calendar days from the occurrence of this event or disadvantage, or at least to be counted from the moment the informing Party becomes aware of or reasonably could have been aware of this event or disadvantage.  This is in order to enable the Service Provider to determine the origin and cause(s) of the damage within a reasonable period.

4. Under no circumstances shall the Service Provider be liable for

   • indirect, incidental or consequential loss, including but not limited to financial or commercial losses, loss of profit, increase of general expenses, missed savings opportunities, diminished goodwill, damages resulting from business stoppage, damages resulting from claims of customers of the Customer, disruptions in scheduling, loss of expected profit, loss of capital, loss of customers, missed opportunities, loss of information, loss of advantages, or compromising and loss of files resulting from the performance of the present Agreement.

   • damages resulting from error or negligence of the Customer,

   • compensation of any direct and indirect damages caused by the use of the result of the Services,

   • compensation of any direct and indirect damages caused in whole or in part by software or hardware supplied or created by third parties, or any other element introduced into the Customer’s business after the signing of the Agreement, and

   • all claims of third parties brought against the Customer.

5. The Service Provider is not liable for any claims of intellectual property rights infringement based upon:

   • use of a modified or old version of any or all of the developments, if the infringement could have been prevented by using the unmodified or last version which the Service Provider has made available; or

   • information, design, specifications, instructions, software, data or other materials that were not developed by the Service Provider.

6. The provisions of this article, alongside all other limitations and exclusions of liability specified in these General Terms and Conditions, are stipulated in part for the benefit of the Employees of the Service Provider and its Affiliated Companies.

1. Confidential Information is defined as all information of any form whatsoever (oral, written, graphic, electronic, etc.) exchanged between the Parties in the context of the Agreement. At a minimum, any information designated as confidential by one of the Parties will be considered as such.

2. Each Party and its Employees must keep confidential all confidential information received from the other Party in the performance of this Agreement. Additionally, the Parties may only use the confidential information for the purpose of the Agreement The Parties may not disclose the confidential information to third parties without prior consent of the other Party in writing.

3. The confidentiality obligation shall continu to exist for a period of three (3) years after the end of the Agreement, regardless of the cause of the termination of the Agreement.

4. If any confidential information is copied, disclosed or used otherwise than as permitted under the Agreement then, upon becoming aware of the same, without prejudice to any rights or remedies of the disclosing Party, the receiving Party shall as soon as practicable notify the disclosing Party of such event and, if request by the disclosing Party in writing, take such such steps (including the institution of legal proceedings) as shall be necessary to limit the consequences of such non permitted disclosure and to prevent further unauthorised copying, disclosure or use.

1. Neither party is obliged to fulfil any obligation if prevented from doing so by Force Majeure.

2. If a situation of Force Majeure lasts longer than sixty (60) calendar days, either Party is entitled to rescind the Agreement in writing. In that event, all performances already rendered under the Agreement will be settled in proportion to the state of completion, without the Parties owing anything to each other beyond this proportionate compensation.

1. The present Agreement is governed by Belgian law. Application of the Vienna Sales Convention of 11 April 1980 (CISG) is excluded.

2. In the event of disputes concerning the implementation and/or interpretation of the present Agreement which cannot be resolved amicably, only the Courts of Antwerp (division Antwerp) will be competent.

3. Neither this Agreement nor the rights or obligations arising from it may be transferred in whole or in part without the express written consent of both Parties. Without prejudice to the foregoing, the Service Provider is at all times authorised to transfer this Agreement or the rights or obligations derived from it, in whole or in part, to an Affiliated Company without requiring the explicit and written consent of the Customer.

4. The nullity of any provision or part of a provision under this Agreement will in no way affect the validity of the remaining portion of the provision or the rest of the provisions and clauses. By mutual agreement, the Parties will make every effort to replace the invalid clause with a valid one with the same, or largely the same, economic impact as the invalid clause had.

5. A Party cannot be considered to have waived a right or claim under this Agreement or relating to a default of the other Party excepting where this waiver is made explicitly and in writing. If under application of the preceding paragraph a Party waives rights or claims under this Agreement that are derived from continuing breach of Agreement or other default of the other Party, this waiver can never be interpreted as waiver of any other right under this Agreement or concerning a continuing breach or other default of the other Party, even if the two situations exhibit significant similarities.

6. Barring any stipulation to the contrary, all legal remedies provided in the Agreement are cumulative and above and beyond (and not in replacement of) any other legal remedies available to the Parties.

7. These General Terms and Conditions, together with the Specific Terms and Conditions are a full and complete reflection of the rights and obligations of the Parties and take the place of all previous agreements and proposals, whether oral or in writing. Departures from and additions to this Agreement are only valid if agreed between the Parties in writing. 

8. All notifications, requests and other communication under this Agreement (excluding everyday operational communications) shall be in writing by registered letter with proof of receipt or in another conventional method of communication agreed between the parties.

9. All provisions of the Agreement explicitly identified as extending beyond the termination (including rescission) or expiry of the Agreement, as well as all provisions of the Agreement the performance of or compliance with which is intended after the termination or expiry of the Agreement, shall continue and remain fully in force beyond the termination or expiry of the Agreement. Specifically, but not exhaustively, all provisions relating to liability, confidentiality and non-solicitation continue after the termination of the Agreement under any and all circumstances.

10. Regardless of the nature and value of the juristic act to be demonstrated, the Service Provider may at all times demonstrate said act based on the following additional evidence: copies or reproductions in any form whatsoever (carbon copy, photocopy, microfilm, scan, etc.), via information carrier, fax, telex and email. This evidentiary material has the same basic force as a private instrument drafted in accordance with the provisions of the Belgian Civil Code. In the event a signed copy of the Agreement has been send by e-mail with a “.pdf” or “jpeg” data file or via another exact copy, the signature contained therein will create a valid and binding commitment for the signatory (or in whose name and on whose behalf the signature has been placed) with the same value, impact and effect as if it was original.

11. The titles and headings in this Agreement are solely indicative and do not in any way affect the content or scope of the provisions or the rights and obligations derived therefrom.