Consulting & Analytics
1.PURPOSE
These terms and conditions of service (the “Terms and Conditions”) set out the terms and conditions under which SIRIUS Insight (hereinafter called the “Supplier”) provides to you (hereinafter called the “Client”) all the research, consulting, training and/or data enrichment services (hereinafter referred together as the “Services”), which may include the provision of a database (hereinafter called the “Database”) as governed by separate terms and conditions, within the territory (hereinafter called the “Territory”) either named in the purchase order and/or set out in the sales proposal (hereinafter referred together as the “Order Document”).
2.CONTRACTUAL DOCUMENTS
2.1. The agreement expresses the entire agreement of the Parties in relation to its purpose, supersedes all documents, signed between the Parties or otherwise, prior to this Agreement and in relation to the same purpose and is exclusively composed of the following contractual documents, in order of decreasing priority:
These Terms and Conditions;
The licence terms of Third-Party Data, if any;
The Order Document;
The Client’s specifications, if any,
(together the “Agreement”).
2.2. Any ambiguity, discrepancy or inconsistency between the terms of these documents shall be resolved in favour of the provisions of the documents of higher rank.
2.3. The content of the Terms and Conditions will be entirely applicable to every Order Document and shall be incorporated in each Order Document by reference, unless to the extent explicitly otherwise agreed in the Order Documents.
2.4. The Agreement may only be amended in writing between the Parties’ authorised representatives. Notwithstanding the foregoing, the Supplier reserves the right to modify the contents of the Services and the Agreement, to the extent permitted by applicable law, and in particular to take into account changes in applicable laws and regulations, changes in the availability of data or software including the user rights in such data and software. In this event, the Supplier shall notify the Client of these changes at least 3 months in advance. The Client shall, after receiving this information, have 30 days to accept, inform the Supplier of its comments, in writing, or refuse the proposed changes in which case the Agreement will be terminated. Failing this, the Client shall be deemed to have accepted the proposed changes.
3.OBLIGATIONS OF SIRIUS INSIGHT
3.1. The Supplier shall use all necessary means to provide the Services in accordance with the conditions set out in the Agreement.
3.2. All obligations of the Supplier under the Agreement are obligations of means (“obligations de moyen”, “inspanningsverbintenissen”).
4.CLIENT’S OBLIGATIONS
4.1. The Client agrees to provide the Supplier with the information and assistance agreed between the Parties and required by the Supplier for the proper fulfilment of its obligations under the Agreement, including but not limited to the provision of Client Data and relevant business information, and ensuring the availability of Client personnel as required by the Supplier for the proper performance of the Services. In this regard, the Client undertakes to use its best efforts to provide to the Supplier, reliable, full and accurate information, consistent with the format agreed between the Parties.
4.2. If applicable, where the Client has subscribed to training services, any cancellation or postponement of the scheduled session must be notified to the Supplier at least 48 hours in advance. Otherwise the Supplier reserves the right to obtain payment of the corresponding amounts.
4.3. The Client agrees to use the Services solely for its own internal business purposes.
5.NATURE OF THE SERVICE
5.1. The Client acknowledges that the Services provided by the Supplier are not intended to be used as the sole basis for the Client’s decision-making.
5.2. The Client is solely responsible for determining if the Services are sufficient for its purposes and whether these satisfy the legal/regulatory requirements of the Client.
5.3. The Client further acknowledges that the Services involving models and techniques based on statistical analysis, behavioural analysis and probability, involves data provided by third parties over which the Supplier has no control (“Third-Party Data”). Accordingly, to the extent permitted by law, the Supplier shall not be liable in the event of:
5.3.1. inaccuracies or errors in the Services due to data transmitted by the Client or any third party or by the Beneficiaries, or
5.3.2. inability or failure by the Services to achieve a particular result for the Client.
5.4. The Client understands and agrees that the Supplier has the right to suspend access to the Services: (a) in case of a suspected breach by the Client or a Beneficiary of the Agreement; (b) to comply with a legal obligation, (c) to avoid and/or limit any adverse impact on the Supplier, the Client, any Beneficiary and/or other customers of the Supplier; and (d) in case of urgent maintenance required to protect the Services. In the latter case, the Supplier will use reasonable efforts to (a) limit the duration of such suspension; (b) plan the period of suspension, where reasonably practicable, outside business hours; and (c) inform the Client in advance where reasonably possible.
5.5. The Supplier has the right to take all steps required in order to monitor the use of the Services and to verify whether the use thereof by the Client and the Beneficiaries is in compliance with the Agreement.
6.SHARED OBLIGATIONS
6.1. Each Party agrees to communicate to the other, any information, document or difficulty of which it becomes aware that may affect the proper performance of the Agreement.
6.2. Where applicable, each Party agrees to receive the personnel of the other Party engaged in providing the Services, under the best conditions possible, and to provide them with the means and tools necessary to perform the Services.
6.3. Each Party agrees to ensure compliance by members of its personnel present on the premises of the other Party with all the internal regulations and all internal procedures in force which have been previously disclosed to them.
6.4. Each Party guarantees to be represented by an authorised person for the purposes of this Agreement.
6.5. Each Party guarantees to the other that it has the consents, permits and authorisations necessary for the proper fulfilment of its obligations under the Agreement.
7.INTELLECTUAL PROPERTY
7.1. “Intellectual Property Rights” means (a) copyright (including software rights), patents, database rights and rights in trademarks, designs, know-how and confidential information (whether registered or unregistered); (b) applications for registration, and the right to apply for registration, for any of these rights; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.
7.2. The Supplier (and its licensors, where applicable) own(s) all right, title and interest, including all Intellectual Property Rights in and to the Services (with the exception of Client Data included in the Services by the Client).
7.3. Subject to the terms, conditions and restrictions of the Agreement, and subject to the Client’s payment of fees and compliance with the Agreement, the Supplier grants the Client and the Beneficiaries a limited, non-exclusive, non-transferable, non-sublicensable right to access and use the Services in the Territory, during the term of this Agreement and solely for the Client’s internal business purposes. In the absence of its nomination, the Territory agreed between the Parties is the Belgian territory.
7.4. The Agreement does not convey to the Client any rights of ownership in or related to the Services. Any trademarks used by the Supplier or its licensors within or associated with the Services, are trademarks of the Supplier or third parties, and no right or license is granted to the Client to use them. The Client is not allowed to remove or change any Intellectual Property Rights, including logos and trademarks in relation to the Services.
7.5. The Services may incorporate Third-Party Data for which the Supplier is authorised to grant to the Client a non-exclusive, non-transferable, licence to use in accordance with the terms, conditions and restrictions of this Agreement. The Client agrees to comply, where applicable, with the licence to use Third-Party Data annexed to this Agreement.
7.6. The Client grants to the Supplier for the duration of the Agreement and at no cost, the non-exclusive and non-transferable right to use and copy the Client’s Intellectual Property Rights and data required by the Supplier to provide the Services and fulfil its obligations under the Agreement and, in particular, without this list being exhaustive, the data, databases and works included in the Services by the Client (“Client Data”).
7.7. Without prejudice to the Supplier’s other rights and remedies under applicable law and the Agreement, the Client will defend the Supplier against any third party claim and pay any damages and costs finally awarded against the Supplier by a court of competent jurisdiction or that are included in a settlement approved by the Client to the extent the Client Data or the Supplier’s access or use thereof is held to infringe Intellectual Property Rights of any third party.
8.INFRINGEMENT
8.1. Each Party certifies that it holds the Intellectual Property Rights and permissions required for the concessions specified in the Agreement.
8.2. Each Party certifies to the other, the undisturbed enjoyment of the rights granted under the Agreement. Accordingly, each Party indemnifies the other Party against any claim of any nature whatsoever from any third parties. Thus, should proceedings be initiated against any Party on the grounds that the elements by which rights granted by the other under the Agreement infringe the Intellectual Property Rights of a third party, the licensor Party agrees to pay all reasonable fees, court costs and damages advanced by the licensee Party.
It is understood that in such a case, the licensee Party (i) shall inform the licensor Party of such a claim as soon as it becomes aware of it, (ii) shall refrain, without the prior written consent of the licensor, from paying the infringed third party, from negotiating with it or its agents with a view to reaching an out-of-court settlement or resorting to arbitration or mediation, and (iii) shall agree to comply with any reasonable request by the licensor in respect of the conduct of negotiations and contentious strategy to adopt in respect of the Intellectual property rights in question.
8.3. Should the obligations under clause 8.2 not be complied with, the licensee Party shall forfeit the indemnification set out in clause 8.2.
8.4. The licensor Party shall indemnify the licensee Party, at its sole discretion:
8.4.1. either by providing at its expense Services equivalent to the Services subject to an action for infringement. The change made shall not substantially affect the functionality and performance of the Services;
8.4.2. or by obtaining at its expense, all the other necessary permits and licences from the corresponding rights holders.
8.5. The compensation set out in clause 8.4 is deemed to cover the entire loss suffered by the licensee Party and excludes any other compensation, to the extent permitted by law.
9.BENEFICIARIES
9.1. The Client is authorised to make the Services available to third parties duly identified in the Order Documents or which will become so, by express agreement, during the performance of the Agreement (hereinafter referred to as the “Beneficiaries”).
9.2. The Client acknowledges and agrees to be fully responsible for each use of the Services by the Client and its Beneficiaries and the Beneficiaries’ compliance with the Agreement. The Supplier has no relation with individual Beneficiaries or third parties using the Services.
9.3. The Client shall ensure that, to the extent applicable and necessary, all of its Beneficiaries are provided with full information of and shall comply with the Client’s obligations under the Agreement. The Client must ensure that all third parties that use the Services agree to use them in full compliance with the Agreement and, to the extent permitted by law, waive any and all claims directly against the Supplier related to the Services.
9.4. Notwithstanding any other causes referred to in this Agreement, where the Beneficiaries are member entities of the Client’s group, the Client undertakes to ensure that the Beneficiaries stop using the Services from the day they cease to be controlled directly or indirectly by the Client, for whatever reason.
9.5. The Supplier reserves the right to suspend and/or terminate all or part of the Agreement in the event of a breach by a Beneficiary, in accordance with the “Termination” article.
10.EFFECTIVE DATE/TERM
10.1. Subject to provisions to the contrary in the Order Document, this Agreement is effective from the date of the signing of the Order Document (the “Effective Date”).
10.2. The Agreement is entered into for an initial period (the “Initial Term”) specified in the Order Document. Failing this, this Initial Term will be three (3) years as from the Effective Date.
10.3. Subject to any provisions to the contrary in the Order Document, the Agreement shall be automatically renewed for successive periods of one (1) year unless terminated by either Party by registered letter with return receipt giving a notice period of six (6) months prior to the renewal anniversary date.
11.PAYMENT AND INVOICING
11.1. Subject to provisions to the contrary in the Order Document:
11.1.1. invoices shall be issued in euros, in advance, due, and prices are deemed to be excluding VAT;
11.1.2. the price does not include the Supplier’s travel expenses and accommodation which shall be charged in addition for their actual costs on presentation of documentary proof;
11.1.3. the Client agrees to pay the amounts agreed between the Parties, and in particular those described in the Order Document, within 30 days from the invoice date;
11.1.4. the amount of the annual fee is reviewed annually on the anniversary of the Effective Date depending on the upward movement of the Agoria index, the benchmark indices being the latest known index on the date of entry into force of this Agreement and the latest known index on the revision date, in application of the following formula: P = P0 (0,2 + 0,8 X1/X0)
in which: P is the new price, P0 the initial price, X1 the national reference labour costs of the month December prior to the revision as published by Agoria, and X0 the national reference labour costs in December prior to the effective date of this Agreement as published by Agoria.
11.2. Any late payment shall accrue automatically and without prior notice, late payment interest payable immediately equal to 8 percentage points above the European Central Bank’s reference rate.
12.DATA PROTECTION
The Parties’ obligations with respect to the Processing of Personal Data are set out in Schedule 1 (Data Processing Agreement).
13.CONFIDENTIALITY
13.1. “Confidential Information” means all information which is disclosed by one Party to the other whether before or after the Effective Date of this Agreement, which is designated in writing as confidential or would appear to a reasonable person to be confidential and which relates to a Party’s business including its products, operations, processes, plans or intentions, developments, trade secrets, know how, design rights, market opportunities, personnel, suppliers and/or customers, and all information derived from any of the above.
13.2. Each Party shall, in respect of the other Party’s Confidential Information, for which it is the recipient:
13.2.1. keep the Confidential Information strictly confidential and not use or disclose to any third party any part of such Confidential Information except as required for the performance of the recipient’s obligations under this Agreement; and
13.2.2. take all reasonable steps to prevent unauthorised access to the Confidential Information.
13.3. Each Party may disclose Confidential Information to, and allow its use in accordance with this Agreement by, the following third parties provided that it shall procure that any third party to whom it discloses Confidential Information shall observe the restrictions set out in this clause 13 (Confidentiality):
13.3.1. employees and officers of the recipient on a need-to-know basis to perform the recipient’s obligations under this Agreement;
13.3.2. the recipient’s auditors and professional advisors solely for the purposes of providing professional advice; and
13.3.3. if the Client is the recipient, agents and sub-contractors of the Client involved in performing the Client’s obligations under this Agreement.
13.4. The restrictions in clause 13.2 do not apply to any information to the extent that it is:
13.4.1. or comes within the public domain other than through a breach of clause 13.2;
13.4.2. in the recipient’s possession (with full right to disclose) before receiving it from the other Party;
13.4.3. lawfully received from a third party (with full right to disclose);
13.4.4. independently developed by the recipient without access to or use of the Confidential Information; or
13.4.5. required to be disclosed by law or by a court of competent jurisdiction.
14.TERMINATION
14.1. Either Party shall be entitled to terminate this Agreement immediately without court intervention by serving prior written notice on the other Party:
14.1.1. if the other Party commits a material breach of an obligation under this Agreement which is not capable of remedy;
14.1.2. if the other Party commits a material breach of an obligation under this Agreement which is not remedied within thirty (30) days after receipt of a notice from the Party not in breach specifying the breach, requiring its remedy and making clear that failure to remedy may result in termination;
14.1.3. to the extent permitted under applicable law, if the other Party is in an insolvency situation, such as: (i) a Party passing a resolution for its liquidation, dissolution or winding up or suffering a winding-up order being made against it or going into administration; (ii) a receiver or administrative receiver is appointed or an encumbrance takes possession of the undertaking or assets (or any substantial part thereof) of a Party; and/or (iii) if a Party is unable to pay its debts or ceases to, threatens to cease to carry on its business, extends its requests for suspension of payment, or enters into a composition with all or part of its creditors;
14.1.4. in the event of a material change in the other Party’s management, business, assets or in the direct or indirect ownership of the other Party (in the event of a change in direct or indirect ownership, “material” means a change of controlling participation – whether by capital share or voting rights – in the other Party).
14.2. Termination of this Agreement (or of any element of it) shall not affect any rights, obligations or liabilities of either Party which have accrued before termination or which are intended to continue to have effect beyond termination.
14.3. The Client shall, and shall procure that the Beneficiaries shall, at the expiration or termination of the Agreement for any reason whatsoever, immediately stop using the Services or any of its components and return within one month at the Client’s expense all data, equipment, materials and Confidential Information belonging to the Supplier, or, at the latter’s request, destroy them at its own expense and provide all evidence of this destruction.
15.LIABILITY
15.1. The Parties agree not to exclude or not to limit their liability in the event of a breach of their obligations under clauses 8 (Infringement) and 13 (Confidentiality).
15.2. In any case, the Supplier shall not be held liable in any way whatsoever for the consequences resulting from (i) the use made by the Client or a third party of the results of the Services, (ii) the content of the data or documentation given to the Supplier by the Client, its sub-contractors, or Beneficiaries of the Services, (iii) any delay, inaccuracy or malfunction due to any failure, fault, negligence or omission by the Client, its sub-contractors, the Beneficiaries or any third party over which the Supplier has no power of control or supervision, (iv) a non-compliant use of the Services by the Client or Beneficiaries, (v) the use and consequences of the use of any system, network, material or documentation belonging to or used by the Client that is not under the control of the Supplier.
15.3. Subject to clauses 15.1 and 15.5, neither Party shall be liable (whether in contract, negligence, for breach of statutory duty or under any indemnity or otherwise) for any indirect or consequential losses, such as but not limited to loss of profits; loss of earnings; loss of business or goodwill; business interruption; loss of anticipated savings; increase in bad debt; loss of sales or revenue; failure to reduce bad debt; reduction in the value of an asset; even if the one Party had notice of the possibility of the other Party incurring such losses.
15.4. It is the Client’s responsibility to notify the Supplier of any defects or non-compliance it has observed and to provide evidence of the Supplier’s failure. Insofar as the Client is able to demonstrate that it has suffered a direct loss under the Agreement, and subject to clauses 15.1 and 15.5, the Supplier’s liability to the Client in respect of any claims (whether in contract, negligence, for breach of statutory duty or under any indemnity or otherwise) brought under or in connection with this Agreement shall be limited in aggregate to the greater of (1) € 50.000 or (2) the Fees (excluding VAT) paid or payable by the Client to the Supplier under this Agreement in the contract year (i.e. the twelve calendar month period starting upon the Effective Date and thereafter each subsequent anniversary of the Effective Date) in which such liability arises.
15.5. Nothing in this Agreement shall exclude or limit:
15.5.1. either Party’s liability for personal injury or death resulting from its negligence or that of its employees, agents and/or sub-contractors;
15.5.2. either Party’s liability for fraud or wilful misconduct (“opzet”/“dol”); and
15.5.3. either Party’s liability that cannot, as a matter of law, be limited or excluded.
16.TRANSFER/SUBCONTRACTING
16.1. The Client is not allowed to transfer all or any of its rights and obligations under the Agreement to a third party without the prior written consent of the Supplier. The Supplier is entitled to transfer its rights and obligations under the Agreement to third parties subject to information to the Client.
16.2. The Supplier reserves the right to subcontract the execution of any part of the Agreement to third parties, without prior notice or information to the Client.
17.INSURANCE
The Parties declare holding an insurance policy covering the financial consequences of the involvement of their respective professional liability.
18.NON-SOLICITATION
For the term of this Agreement and for 24 months after the date of termination or expiry of this Agreement, as the case may be, neither Party shall, without the prior written consent of the other Party, solicit or employ any employee of the other Party who is involved in the performance of that Party’s obligations under this Agreement.
19.REFERENCE
Subject to provisions to the contrary in the Order Document, the Supplier is authorised to quote the Client’s name, logo and type of services provided under the Agreement as a reference as part of the advertising of its services. The Supplier agrees to reproduce the Client’s trademarks without making any changes to them that may adversely affect them.
20.FORCE MAJEURE
20.1. “Force Majeure” means any event which is beyond the reasonable control of a Party and which impacts the execution of its obligations under the Agreement, including, but not limited to, natural disasters, epidemics, pandemics, extreme weather conditions, fire, riots, war and military operations, national or local emergency situations, acts or negligence of the government, economic disputes of any nature whatsoever, strikes, unannounced labour actions, fire, flooding, lightning, explosions, collapses, disruptions in traffic, the reduced or non-functioning of networks, systems or equipment of third parties as well as any act of negligence of a person or entity which is outside of the reasonable control of a Party.
20.2. Neither Party will be liable for any delay or failure in the performance of its contractual obligations caused by Force Majeure, provided that the Party claiming force majeure promptly notifies the other Party of the Force Majeure.
20.3. If Force Majeure persists for a period of thirty (30) calendar days or more, either Party may give prior written reasonable notice to the other to terminate this Agreement without penalty or other liability.
21.MISCELLANEOUS
21.1. If any part of this Agreement is found to be invalid or unenforceable by any court, such invalidity or unenforceability shall not affect the other provisions of this Agreement and such other provisions shall remain in full force and effect.
21.2. Any waiver or modification of this Agreement hereunder will not be effective unless executed in writing and signed by the Supplier.
21.3. The titles of the articles, paragraphs, annexes and table of contents are only for reference and convenience. They are not an integral part, nor do they enter into the interpretation of the Agreement.
21.4. The Parties are not linked by any “affectio societatis” and the Agreement shall not be construed as creating any entity with a legal personality in any capacity whatsoever, between the Parties.
21.5. Any notices or other communications given to a Party under or in connection with this Agreement shall be in writing, by e-mail or be registered mail and shall be addressed to the addressed mentioned in the Order Document, unless any of the Parties informed the other Party of a change in said information.
21.6. The Agreement is governed by Belgian law. Any dispute concerning the application, implementation or interpretation of the Agreement shall, by express agreement, be brought before the courts of Brussels, Belgium.
