General

  1. All offers, quotes, orders and agreements relating to the provision of Services by Codific  BV, with registered offices at Tervuursevest 21 bus 1501, 3001 Heverlee (Belgium), company number 0840.252.107, VAT BE0840.252.107 (hereinafter referred to as “Codific”) are governed by these general terms and conditions (“General Conditions”).
  2. For specific Services, Special Conditions may apply in addition to the General Conditions (together “Terms and Conditions”). The Order, if any, and the Terms and Conditions together form the Agreement between the Parties.
  3. In case of contradiction, the following hierarchy applies in the following order: (i) Order, (ii) Special Conditions and (iii) General Conditions.
  4. The general and/or other conditions of the Client do not apply, even if these provisions explicitly stipulate that they will be the only ones applicable.
  5. By ordering and/or using the Services, the Client agrees to be bound by the Terms and Conditions.
  6. Codific and the Client are individually referred to as the “Party” and collectively as the “Parties”.

Definitions

  1. In the context of the Terms and Conditions, the following words shall have the following meaning:
    1. “Agreement” means the Order and the Terms and Conditions.
    2. “Special Conditions” means the Special Conditions applicable to one or more specific Services.
    3. “Contract Period” means the duration as agreed between parties as defined in the Order.
    4. “Client” means the client that has ordered the Services, as identified in the Order.
    5. “Client Materials” means the information that is uploaded to the Software by the Client or Codific as a result of the Client’s use of the Services or the Client’s request to Codific.
    6. “Commencement Date” means the start date of the Services as determined in the Order.
    7. “Confidential Information” means all information disclosed by either Party to the other Party in the context of the provision of Services that is marked “confidential” (including, for the avoidance of doubt, any other similar word), as well as all other information that should reasonably be considered as confidential by the receiving Party due to its nature or the manner of disclosure. Confidential Information shall not include:
      1. information publicly available through no fault of the receiving Party;
      2. information legally obtained by the receiving Party and in its possession prior to the date of disclosure or afterwards, free from confidentiality constraints;
      3. information independently developed by the receiving Party without any use of Confidential Information.
    8. “Affiliate” means a company controlled by the Client or a company controlling the Client or a company controlled by such a holding company where “control” shall mean having, directly and/or indirectly, a simple majority interest or more by capital and shareholding or voting rights.
    9. “Extended Hours” means 7.30 am to 6.30 pm CET during any day from Monday to Friday, excluding official holidays in Belgium.
    10. “Contract Year” means a period of 12 calendar months starting from the Commencement Date and, subsequently, a period of 12 calendar months from each anniversary date of the Commencement Date.
    11. “Intellectual Property Rights” means, without being limited thereto, all present and future patents, design rights (registered and unregistered), trademarks (registered and unregistered), copyrights, database rights and all applications for any of such rights together with any similar rights of whatever nature existing throughout the world.
    12. “Force Majeure” means unforeseeable circumstances beyond the reasonable control of a Party which result in that Party being unable to observe or perform (on time) any of its obligations.
    13. “Normal Working Hours”: hours between 9 am and 5 pm from Monday to Friday excluding official holidays in Belgium.
    14. “Order” means the order, either in electronic or paper form, that (i) identifies the Client and (ii) describes the Services that the Client has ordered.
    15. “Device” means any computer or device used to access or use the Services, including without limitation a desktop, laptop, mobile phone, tablet, or other electronic device.
    16. “Services” means the services to be provided by Codific to the Client and described in the Order.
    17. “Service Levels” means the applicable service levels, as may be agreed in the Order.

Term and termination

  1. The Agreement shall enter into effect on the Commencement Date and shall terminate, unless specified otherwise in the Order, on the date on which all Services have been supplied to the Client.
  2. If the Agreement is subject to tacit renewal, either Party may prevent renewal by giving notice to the other Party at the latest three (3) months prior to renewal. A renewal term shall have the same duration as the initial term.
  3. Each Party shall have the right, without prejudice to its other rights and remedies, to terminate the Agreement immediately by registered letter to the other Party, if that other Party:
    1. Materially breaches any of its obligations;
    2. Commits a breach of its obligations and fails to rectify the breach within thirty (30) days after receipt of notice from the other Party explaining the nature of the breach and asking the defaulting Party to remedy the breach.
    3. Becomes insolvent or initiates negotiations about composition with its creditor or a petition in bankruptcy is filed.
  4. Upon expiry or termination of the Agreement, all amounts due from the Client to Codific shall be paid immediately.
  5. Termination or expiry shall not affect any obligations under the Agreement which are explicitly or implicitly intended to survive the termination or expiry.

Rights and obligations of the Parties

  1. Unless otherwise expressly stated in the Agreement, the obligations of Codific are obligations of means. Codific will use reasonable care in the provision of the Services.
  2. The estimated date on which a Service will be delivered has an informative value and is therefore not binding.
  3. The Client accepts to provide all reasonable assistance and access to Codific necessary for the performance of the Agreement, including (amongst others), reasonable access to the client’s sites, assistance in relation to any investigation carried out by Codific in relation to the Services, any unauthorized use of the Services and/or any (suspected) infringement of the security measures.
  4. The Client is solely liable for the use of the Services.

Warranties

  1. Codific guarantees that it has the necessary know-how and experience to perform the Services. Codific will only assign employees that have sufficient knowledge and experience to properly perform the Services.
  2. Codific guarantees that it has all the necessary licences and certificates legally required to provide the Services.
  3. The Services are provided “as is”, at the risk of the Client, without express or implied warranty or condition of any kind. Codific also disclaims any warranties of merchantability, fitness for a particular purpose or non-infringement.

Price and payment

  1. Codific will invoice the Services in accordance with invoicing schedule set out in the Order. In the absence thereof, the Services will be invoiced in advance.
  2. Unless expressly stated otherwise, all prices issued by Codific are in euros, VAT and other taxes and charges excepted. All costs related to Services that are not included in the price will be paid by the Client. Codific is allowed to invoice all reasonable expenses, provided these expenses are incurred as a part of the normal execution of the Services, have been approved in writing in advance by the Client and have been proven and described in detail.
  3. All prices and fees for Services are adjusted annually on January 1st according to the following formula:
    1. New price: Old price * [0,2 + 0,8 (new Agoria index / Agoria base index)]
    2. Old price: the costs that have been determined in the Order.
    3. New Agoria index: the Agoria index applicable in December preceding the indexation date;
    4. Agoria base index: the Agoria index applicable to the month preceding the Commencement Date;
    5. Agoria Index : Agoria Index Salaries and Wages (national average) , available at: www.agoria.be.
  4. All fees and other charges payable by the Client hereunder shall be paid within fifteen (15) days after the invoice date.
  5. In the event of late payment by the Client, Codific is entitled, by right and without notice, to the payment of an interest in accordance with: (a) the Act of 2 August 2002 combatting late payments in commercial transactions if the Client does not have consumer status or (b) the legal interest rate if the Client has consumer status, plus a fixed compensation of 10% of the outstanding amount with a minimum of 75 euros. For each reminder sent by mail, an additional fee of 7,5 EUR is due.
  6. Any claim relating to an invoice must be sent by registered letter to Codific within ten (10) calendar days of the receipt of the invoice. After this period, no claim will be taken into account.
  7. In the event of non-payment of an invoice, Codific reserves the right to suspend the performance of the Services without notice.

Liability

  1. The total liability of Codific shall be limited, per Contract Year, to the lower of the following amounts: (i) an amount equal to the amount of the service fee paid or payable by the Client to Codific for that Contract Year or (ii) EUR 50.000.
  2. Codific shall not be liable for indirect or consecutive damages such as, but not limited to, loss of revenue, loss of profit, loss of goodwill, loss of opportunity or loss or corruption of data.
  3. No limitation of liability shall apply in case of fraud, wilful intent, gross negligence, death or personal injury caused by a Party’s negligence.
  4. Any claim from the Client arising out of or in relation to the Services shall be barred one (1) year after the event giving rise to the claim became known or should have become known to the Client, but never later than six (6) months after the termination or expiry of the Agreement.

Intellectual property

  1. Codific remains at all times the owner of all intellectual property and other rights in all materials used to render the Services (including, where applicable, the source code), unless explicitly otherwise agreed in writing in the Order. The Client agrees to use reasonable efforts to prevent and protect the Services from unauthorized disclosure or use.
  2. If Codific delivers material belonging to a third party to the Client, the Client will have a user right in accordance with the third-party license applicable to that material.

Non-solicitation

  1. The Client agree not to recruit or hire, directly or indirectly, any person assigned by Codific to the performance of the Services during the term of the Agreement and for twelve (12) months after its termination or expiry, without the prior written consent of Codific.
  2. If the Client breaches this Clause, Codific shall be entitled to request compensation equal to (a) in case of an employee, one (1) year of the employee’s gross salary for a full-time job, based on the compensation paid to the employee in question during the last 12 months and (b) in case of a self-employed consultant, two (2) years of fee for this consultant.

Confidentiality

  1. The Parties undertake to treat confidentially all Confidential Information of the other Party and not to disclose it to third parties, except to the extent necessary for the provision of the Services and provided that such third parties fulfil confidentiality obligations substantially equivalent to those contained in these Terms and Conditions.
  2. The Parties shall not use or divulge Confidential Information to any person without the express prior written consent of the other Party unless required by law or by a court order, provided that the receiving Party notifies the disclosing Party, to the extent it is permitted to do so, as soon as reasonably possible. The disclosure shall be limited to the largest extent possible.
  3. The Parties shall ensure that their employees and any agents or sub-contractors are aware of and comply with this Clause and each Party shall be responsible to the other Party in respect of any loss or damage which may be sustained or incurred as a result of any breach of confidence or disclosure by any such persons.
  4. Confidential Information shall be used only for the purpose(s) for which it was disclosed.
  5. Each Party shall take all reasonably necessary measures, at least equivalent to the measures taken for the protection of its own Confidential Information, to prevent unauthorized use, disclosure or publication of the Confidential Information.
  6. The provisions of this Clause shall survive the termination or expiry of the Agreement for a period of seven (7) years.

Insurance

  1. Codific shall at all times maintain in force insurance policies and coverage relating to its duties and obligations arising from the Agreement.
  2. Insurance shall be carried in such amounts and shall cover such risks that may be deemed reasonable and appropriate taking into account the nature of its business, the associated risks and the cost and availability of insurance.

Force Majeure

  1. Neither Party shall be liable for damages caused by non-performance or delay in performance of its obligations in case of Force Majeure.
  2. A Party suffering a Force Majeure event shall promptly inform the other Party as soon as reasonably possible in writing about the Force Majeure event, describing in detail the Force Majeure event and its foreseen consequences.
  3. The Parties shall discuss in good faith which measures can be implemented to mitigate the consequences of any Force Majeure.
  4. If a case of Force Majeure lasts more than fifteen (15) days, the Parties shall consult each other to agree whether to continue, amend or terminate the Service(s) affected, by means of an amendment or the termination of the Service(s) concerned.

Miscellaneous

  1. The validity of the Terms and Conditions is not affected by the nullity of one or more of their clauses. The Parties undertake to replace the invalid clause with a valid clause that is as close as possible to the economic intent of the invalid clause.
  2. The non-assertion of a right or the non-application of a sanction by one of the Parties does not constitute a waiver of its rights.
  3. The Client is not entitled to assign the Agreement or any part of its rights or obligations without the written consent of Codific. Codific may transfer its rights and obligations without the Client’s prior consent.
  4. Titles are purely informative and may not be used for interpretation.
  5. Codific is authorized to use the Client as a reference (including the right to use the Client’s name and logo).
  6. Codific may designate sub-contractors for the performance of the Services without prior authorization from the Client, provided however that Codific remains fully liable for the performance of the Services by these sub-contractors.
  7. Nothing in these Terms and Conditions shall be interpreted as creating a joint venture or partnership between the Parties.
  8. All notices which are required to be given hereunder shall be in writing and shall be sent to the address of the recipient set out in the Order or such other address as the recipient may designate in writing.

Applicable law and competent jurisdiction

  1. The General Conditions are governed by Belgian law.
  2. Any dispute arising from or related to the Agreement will be subject to the exclusive jurisdiction of the courts competent for Leuven (Belgium).