General conditions for consultancy
GENERAL TERMS FOR CONSULTANCY
of InnoGreen, domiciled and having an office at Wilselsesteenweg 35, 3020 Herent, Belgium.
Section 1: Definitions
In these general terms for consultancy the following are understood to mean:
- "Consultant": InnoGreen, domiciled and having an office at Wilselsesteenweg 35, 3020 Herent, Belgium
- "Client": anyone who instructs InnoGreen or enters into a contract with InnoGreen.
- "Consultancy": advice and recommendations provided by InnoGreen with respect to cultivation (under cover) in the horticultural sector in the broadest sense of the word and services provided by the company within that framework.
Section 2: Applicability
2.1 Only the consultant's present general terms for consultancy, hereafter called "the terms", are applicable to all quotations, offers and/or consultancy agreements with the consultant.
2.2 Terms operated by the client, of whatever nature and whether or not contained in the general terms and conditions operated by the client are only applicable if these terms have been expressly accepted in writing by the consultant.
2.3 Mention of or reference by the client to his own purchasing, contracting or other (general) terms and conditions will not be accepted by the consultant and does not render these purchasing/tender or other (general) terms and conditions applicable to the agreement in question.
2.4 Recommendations included by the consultant in its offers, circulars, statements, catalogues, advisory reports, brochures, documentation and the like are to be read as general, unless there is a different agreement in writing, and never specific to one particular type of application, plant, family of plants and the like.
Section 3: Quotations and realisation of agreements
3.1 All quotations by the consultant constitute an invitation to the client to make an offer, unless the consultant expressly states something different in the quotation and without prejudice to the provisions of section
3.2 If contrary to section 3.1 it can be definitely shown that the consultant has provided a quotation, this quotation is without obligation, whereby contrary to section 6:219, subsection 2 of the Civil Code the consultant only becomes bound by this if and in so far as acceptance is confirmed in writing, or the agreement arrived at through the quotation and acceptance is actually carried out by the consultant.
3.3 Periods of time and dates given by the consultant are always approximate and never fixed deadlines, unless there is an express agreement to the contrary in writing.
3.4 All images, drawings, data relating to weights, measurements, colours etc. and/or (incidental) advice, whether or not included in price lists, documentation, circulars and the like are only approximate and are without obligation, unless the consultant expressly confirms something different in writing with respect to a particular quotation or order.
3.5 Verbal promises by and agreements with the consultant's staff are not binding upon the consultant until after and in so far as they are confirmed by the consultant in writing.
Section 4: Specifications, models and tools
4.1 Quotations provided by the consultant, as well as drawings, calculations, specifications, models, tools, designs, lists of materials produced or provided by the consultant and (specimen) products, (trial) equipment or (specimen) software placed at the disposal of the client remain the property of the consultant regardless of whether charges have been made for them.
4.2 The consultant retains the copyright and all other intellectual property rights over all quotations, drawings, calculations, images, models, lists of materials etc. produced by the consultant, or provided to the client, whether or not acting under the client's instructions.
4.3 The property referred to in subsections 4.1 and 4.2, in its entirety or in parts, may not be copied, made public, shown to or placed at the disposal of third parties without the consultant's consent, nor placed at the disposal of third parties by the client under any title or in any form whatsoever, nor sold or encumbered without the express written consent of the consultant.
4.4 The information contained in the property and the consultant's advice referred to in subsections 4.1 and 4.2 remains exclusively reserved for the consultant, even if the client has been charged for these.
Section 5: Prices
5.1 Prices quoted by the consultant will be quoted in euro, exclusive of VAT and other levies.
5.2 If through any government measure, taxes, levies or import duties which have the effect of increasing costs are introduced or amended, or after an agreement has been entered into government measures take effect which in any other way increase the cost of the consultancy, the consultant has the right to pass on this increase or change in costs, even if it had been agreed that the price was fixed.
Section 6: Payments
6.1 Unless a different agreement has been made, payment must be made as indicated by the consultant on the invoice, within thirty days of the date of the invoice.
6.2 All payments must be made without any deduction or setoff on the part of the client, at the consultant's office or into a (bank) account to be designated by the consultant.
6.3 If the client does not pay within the agreed period, he is legally in default and is liable to pay the statutory interest from the due date, or at least 1% per month on the payable amount, whereby part of a month counts as a whole month, as well as all legal and extra judicial costs incurred to recover the debt.
6.4 The extra judicial costs referred to in subsection 7.3 are fixed at a minimum of 10% of the amount due.
6.5 The consultant is at all times entitled to demand security for the fulfilment of payment obligations, and also to suspend the fulfilment of the agreement until security as aforementioned deemed adequate by the consultant is provided.
6.6 In the event that the client refuses to provide such security, the consultant is entitled to cancel the agreement with immediate effect, or to suspend the agreement, without prejudice to the right to full compensation.
6.7 Payments made by the client always serve as payment of interest due and costs and then of invoices which have been due for the longest time, even if the client states that the payment is against a later invoice.
Section 7: Delivery time
7.1 Unless an expressly different arrangement has been agreed in writing, the consultancy will take place on a periodic basis at regular intervals agreed in advance.
7.2 A definite delivery time agreed between the parties in writing contrary to section 3.3 with respect to advice to be provided in report form and all other such agreed delivery times take effect on the date of, or the date stated in, the written confirmation of the order.
7.3 The delivery time is based on the (work) circumstances valid at the time of the conclusion of the agreement and upon delivery on time of the advice, goods, materials and/or services which are needed to carry out the order. If delays arise which are not the fault of the consultant as a result of a change in the planned (work) circumstances or failure to deliver on time necessary advice, goods, materials and services the delivery date will be extended as necessary.
7.4 The delivery time will also be extended by the duration of any delay incurred by the consultant as a result of the failure of the client to fulfil any obligations arising out of the agreement or his failure to co-operate as required with the fulfilment of the agreement.
7.5 In the case of failure to deliver on time as under section 7.4 the consultant shall inform the client of this as quickly as possible, and at the same time the consultant shall give a non-binding indication of the anticipated delivery date.
7.6 Going beyond the delivery date as stated above - for whatever reason - except in cases of intent or gross negligence on the part of the consultant, never gives the client the right to cancel all or part of the agreement, or the right to compensation for damage, or to carry out or have carried out activities to fulfil the agreement without legal authorisation, or to make use of any right to defer their (payment) obligations, without prejudice to the provisions in section 12.
Section 8: Acceptance and complaints
8.1 Complaints relating to shortcomings in the consultancy provided must be made within 8 days after the client discovers, or could reasonably have discovered, the shortcoming, in the form of a registered letter to the consultant, once this period has gone by all liability on the part of the consultant lapses except in the case of intent or gross negligence on the part of the consultant.
8.2 In the absence of a complaint made on time, the consultancy is deemed to have been accepted by the client and the client loses all rights in the matter, except in the case of gross negligence or intent on the part of the consultant.
8.3 Claims under section 8.1 must be lodged in court within six months of a complaint on time on pain of extinguishment.
8.4 Complaints do not give the client the right to refuse payment, unless there is an express agreement to the contrary in writing.
Section 9: Secrecy, third parties
9.1 The consultant, the consultant's staff and any third parties brought in by the consultant, which two last-mentioned have undertaken the same obligation to secrecy as the consultant, shall not directly or indirectly disclose to third parties and/or copy or record in any form, anything which is placed at their disposal under an order or agreement, other than what is necessary for the adequate fulfilment of the order or agreement.
9.2 The client, his staff and any third parties he brings in, with the prior written consent of the consultant, to execute an order or agreement to/with the consultant, which two last-mentioned have undertaken the same obligation as described, shall treat all data, facts and events, which become known to them through the fulfilment of an order or agreement by the consultant, in the strictest confidence and only use it for the purpose laid down in the order or agreement, and not copy, record, make public or in any other way inform third parties or give third parties the opportunity to get to know this information without the prior written consent of the consultant.
Section 10: Liability
10.1 The consultant strives to the best of his ability to achieve the desired result with the consultancy services he provides, but will not give any guarantee of this. The consultant does not accept any liability whatsoever, for any direct or indirect damage, whatever form that takes and for whatever reason, which arises from the consultancy, except in cases of intent or deception. The client indemnifies the consultant against all claims from third parties in this matter, except in the case of intent or gross negligence on the part of the consultant.
10.2 If the client does not fulfil any obligations upon him arising out of the agreement entered into with the consultant or any agreement connected with that, properly or on time, the consultant is not liable to pay any compensation whatsoever with respect to the agreement and all the consultant's liabilities under the terms of the agreement are cancelled.
10.3 The consultant is not liable for: - infringement of patents, licences and/or other rights of third parties as a consequence of the use of information provided by or on behalf of the client; - damage or loss, whatever the cause, of raw materials, semi-finished goods, models, tools, information etc. which are made available by the client.
10.4 The client indemnifies the consultant, its staff and any third parties engaged by the consultant in connection with the order or agreement, against all claims by third parties for direct or indirect damage arising out of the consultancy, for which the consultant has not specifically accepted liability in these terms.
10.5 The consultant is not liable for any direct or indirect damage for which it has not specifically accepted liability in these terms.
Section 11: Intellectual property, rights of third parties
11.1 The consultant guarantees that its consultancy activities as such will not infringe Dutch patent rights of third parties. If, despite this, the consultant has to acknowledge, or if it is established in a final judgement in a court action against the consultant in a Dutch court that the consultancy activities of the consultant have infringed a Dutch patent of a third party, then the consultant shall have the exclusive choice to adapt the consultancy in such a way that there is no infringement of the Dutch patent concerned, or to obtain licensing rights under the patent concerned, or if neither of the aforementioned options are possible to discontinue the consultancy and shall have the right to cancel the agreement, without being liable to further compensation, and also without the consultant having to indemnify the client in the matter in or outside court.
11.2 In the event that an order has to be executed based on designs, drawings or other instructions from the client, the client guarantees that this will not cause any infringement of the intellectual or industrial property rights or any other rights of third parties.
11.3 The client indemnifies the consultant against all claims by third parties for infringements of their intellectual or industrial property rights within the meaning of section 11.2 whether or not this extends to compensation.
11.4 The client indemnifies the consultant, the consultant's staff and third parties brought in by the consultant against all claims from third parties resulting from the consultancy which has been accepted by the client, whether or not preceding its being made public and/or copied, and where the consultant has expressly consented in writing to the material being made public and/or copied, whether or not the claims extend to compensation.
11.5 The client also indemnifies the consultant against claims from third parties on account of infringements of their rights in information placed at the consultant's disposal by the client.
Section 12: Suspension, fulfilment, cancellation
12.1 Contrary to the provisions of section 6.265 and section 277 of the Civil Code, in the case of force majeure on the side of the consultant and other circumstances of such a nature that it is reasonable and fair that the consultant cannot be required to fulfil all or part of the agreement, then the execution of all or part of the agreement shall be suspended and the consultant has the right to suspend the execution of the agreement for up to a maximum of six months or to cancel all or part of the agreement. After the period of six months has gone by the consultant has to choose whether to execute or cancel all or part of the agreement.
12.2 In the event of both suspension and cancellation the consultant is entitled to demand immediate payment for reasonable costs already incurred in fulfilling the agreement, whatever form they take. In the event of partial fulfilment by the consultant, the client is liable to pay a proportional share of the total price.
12.3 Force majeure is understood to mean among other things, though there is no question of this being an exhaustive account: war, threat of war, insurrection, strikes, lock-outs, transport problems, import, export and transit prohibitions, fire and other serious disruptions in the consultant's company or those of third parties brought in by the consultant, cut-backs in operations, lack of raw materials, resources and packaging materials, and also any impeding circumstances which are not exclusively dependent on the will of the consultant such as non-delivery or late delivery of goods and services which were ordered on time and in the proper manner.
12.4 In the event that the client does not, not properly, or not on time, fulfil any obligation under the agreement entered into with the consultant or under an agreement connected with it, or if there is good reason to fear that the client is, or will not be, in a position to fulfil his obligations to the consultant, whether in the case of moratorium, bankruptcy, closing down, liquidation or partial transfer - whether or not as security - of the client's business including the transfer of an important share of the debts, the consultant is entitled, without further notice of default or judicial intervention, to suspend its obligations under the aforementioned agreements(s), or to choose to cancel all or part of these agreements, without the consultant being liable for any compensation or guarantee, without prejudice to the consultant's other statutory rights.
12.5 In the case of suspension under section 12.4 the agreed price becomes payable immediately, with deductions for payments already made and for costs saved by the consultant as a result of the suspension. This last point applies mutatis mutandis in the event of cancellation under section 12.4 which has not been preceded by suspension, where in the case of partial cancellation a proportional part of the agreed price becomes payable. Payments made by the client under this section leave the consultant's other rights intact, including the right to full compensation.
12.6 If, due to any circumstances whatsoever, the consultant or third parties brought in by the consultant, get into a position where they have a conflict of interests with the client, the parties shall consult each other. In so far as these matters result in a situation where it would not be reasonable to require that the agreement continue, either party has the right to terminate the agreement with immediate effect, subject to the proviso that the client shall pay any costs incurred by the consultant up to that point, or pay for the value of any part of the agreement which has been fulfilled.
12.7 If during the execution of the agreement it turns out that the operations, cultivation methods, plants, job areas, applications and the like to be advised upon do not need advice, or need different advice, or that different operations, cultivation methods, plants, job areas, applications and the like require advice first of all, or that good consultancy is not or is only partly possible, due to withholding of necessary information, or if other circumstances arise of such a nature that it is not possible to provide the correct advice, then the consultant shall consult the client in order to find a solution to the situation which has arisen, without prejudice to the consultant's right to cancel the agreement without further notice of default or judicial intervention.
Section 13: General provisions/applicable law
13.1 The client is not authorised to transfer, wholly or partially, the rights and obligations arising out of the agreement to which these terms apply to third parties, without the prior written consent of the consultant.
13.2 References to sections in the agreement concluded between the parties and in the present general terms are only included for reference purposes and in no way specify, limit or extend the content or interpretation of these terms. They do not constitute divisions of these terms for any purpose whatsoever.
13.3 If one or more provisions of these general terms should prove to be null and void, or if fulfilment of any provisions cannot be demanded for any reason whatsoever, the other provisions of these general terms remain in full force and the parties shall consult each other about the null and void provisions, or the provision for which fulfilment cannot be demanded, about how the import of the provisions in question can best be executed.
13.4 All disputes arising out of or as a result of quotations and/or offers made by the consultant and/or agreements entered into with the consultant will in the first instance be exclusively decided by the district court in Leuven (Belgium), except for cases where the sub-district court is competent.
13.5 All disputes between the parties relating to intellectual property rights will be exclusively decided in the first instance by the district court in Den Haag, except for cases where the sub-district court is competent.
13.6 The statements in sections 13.4 and 13.5 are solely for the benefit of the consultant. The consultant is therefore at all times entitled to apply to a court which is competent, regardless of those given in sections 13.4 and 13.5.
13.7 Belgian law alone is applicable to all quotations, offers and/or agreements with the consultant.
Herent, May 2011