This document sets out the terms and conditions under which Sirius Insight (hereinafter called the “Supplier”) provides to the Client, all the research and consulting and/or enrichment services, possibly with the provision of a database (hereinafter called the “Database”), within the territory (hereinafter called the “Territory”) named in the Purchase Order and/or set out in the Sales Proposal (hereinafter referred together as the “Service”).
2. CONTRACTUAL DOCUMENTS
2.1. The Agreement expresses the entire agreement of the Parties in relation to its purpose, and is exclusively composed of the following contractual documents, in order of decreasing priority:
– This document;
– The licence terms of Third-Party Data, if any;
– The Purchase Order(s);
– The Sales Proposal, if any;
– The Client’s specifications, if any.
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 Agreement expresses the entire agreement between the Parties. It supersedes all documents, signed between the Parties or otherwise, prior to this Agreement and in relation to the same purpose.
2.4. The Agreement may only be amended in writing between the Parties’ authorised representatives. However, the Supplier reserves the right to modify the contents of the Service and the Agreement, in particular to take into account changes in applicable laws and regulations. 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 15 days to accept or inform the Supplier of its comments, in writing. 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 Service in accordance with the conditions set out in the Purchase Order and/or the Sales Proposal.
3.2. The Supplier agrees to employ qualified personnel in sufficient numbers for the proper performance of the Service. These personnel shall remain in all circumstances under the Supplier’s hierarchical authority, which shall provide the administrative, payroll and accounting management thereof. The Supplier certifies that its personnel are legally employed, and guarantees the legality of their status with regard to the social benefits’ and tax authorities.
4. CLIENT’S OBLIGATIONS
4.1. The Client agrees to provide the Supplier with the information and assistance agreed between the Parties required by the Supplier for the proper fulfilment of its obligations under the Agreement. 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 it has subscribed to training services, the Client is informed that 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 Service solely for its own internal needs.
5. NATURE OF THE SERVICE
5.1. The Client acknowledges that the Service provided by the Supplier is not intended to be used as the sole basis for the Client’s decision-making.
5.2. The Client further acknowledges that the Service, where it involves models and techniques based on statistical analysis, behavioural analysis and probability, involves data provided by third parties over which the Supplier has no control. Accordingly, the Supplier shall not accept any liability whatsoever in the event of:
(i) inaccuracies or errors in the Service due to data transmitted by the Client or any third party or by the Beneficiaries, or
(ii) inability or failure by the Service to achieve a particular result for the Client.
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. Each Party shall, on signature hereof, nominate a competent and available person to represent and take all the necessary usual operational measures.
6.3. Where applicable, each Party agrees to receive the personnel of the other Party engaged in providing the Service, under the best conditions possible, and to provide them with the means and tools necessary to perform the Service.
6.4. 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.
6.5. Each Party agrees to make its best efforts to meet the deadlines set by mutual agreement.
6.6. Each Party guarantees to be represented by an authorised person for the purposes hereof.
6.7. 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.
6.8. The Parties may establish a monitoring committee whose meetings are to be agreed and whose role is to monitor the performance of the Services and to identify and resolve problems encountered. It is agreed that any person whose competence or involvement proves necessary in respect of the agenda of the monitoring committee, on both the Client’s and Supplier’s side, may participate in this committee provided that the other party has been informed in advance of the participation of the said person.
7. INTELLECTUAL PROPERTY
7.1. Each Party shall retain ownership of all of its intellectual property and material rights over the software packages, programs, development and analytical tools, works, inventions, distinguishing marks, know-how, methods, documents, data, databases, or the documentation associated with each of these elements, used or implemented in connection with the performance of the Service (all such rights and elements hereinafter referred to as the “Elements”).
7.2. Each Party undertakes not to infringe or jeopardise in any way whatsoever the rights of the other Party over the Elements belonging to it.
7.3. If specified in the Purchase Order, each Party agrees to retain on the physical medium of Elements belonging to the other Party, any retention of title marking, such as, mention of copyright or trademark, and, in the case where one Party grants to the other the right to reproduce any one of the Elements belonging to it, the latter agrees to reproduce the whole of the said wording on the copies that it has been able to make.
7.4. The Supplier grants hereby, to the Client for the Territory and the term of protection of the Results, a licence at no cost that is non-exclusive, non-transferable, without the right to sub-licence, to use and copy the said pre-existing Elements only to the extent that they are an integral part of the Results and are required for the use of the Results and in any event for the Client’s sole needs. Results mean strictly the written documents specific to the Client in the Territory. In the absence of its nomination, the Territory agreed between the Parties is Belgian territory.
7.5. It is recalled as necessary that the Service may incorporate, among the Elements, data belonging to third parties and for which the Supplier is authorised to grant to the Client a non-exclusive, non-transferable, licence to use for its own needs. These data are, if any, specified in the Purchase Order or the Sales Proposal (hereinafter referred to individually as the “Data” or collectively as the “Database”). It is also recalled that these data may be protected by the sui generis law of producers of databases or by copyright.
7.6. Accordingly, the Client agrees:
7.6.1. To comply, where applicable, with the licence to use Third-party Data annexed to this agreement;
7.6.2. Not to infringe, directly or indirectly, the rights covering the Data or the Database resulting therefrom;
7.6.3. Not to unlock any systems of protection incorporated into the Data or Database;
7.6.4. To respect the trademarks, names, symbols, logos, colours, graphics or any other distinctive sign belonging to the owner of the Data and Database, and not to create any analogy in the mind of the public for whatever purpose or by any method whatsoever;
7.6.5. Not to disclose or distribute to third parties, by any means whatsoever, in part or in whole, the Database or some or all of the Data it contains.
7.7. 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 Elements and data required by the Supplier to provide the Service and fulfil its obligations under the Agreement and, in particular, without this list being exhaustive, the data, databases and works included in the Service by the Client.
8. LICENCE TO USE THE DATA
8.1. The Supplier grants under the Agreement an annual licence for personal use that is neither transferable nor assignable nor exclusive of the Database associated with the Service in accordance with the terms and conditions specified herein or enclosed, if any, with the agreement.
8.2. The Client declares being aware of the provisions of the Agreement and agrees to comply with them in full.
8.3. The Client shall make no changes to the said Database in respect of its structure.
8.4. Unless stipulated in the Purchase Order, the Client agrees to use each new version delivered within 30 working days of receipt of the new version.
8.5. Client agrees that Sirius Insight may replace during the lifetime of the Agreement, at its initiative, all or part of the Database, by any other database allowing the Service to be used in similar conditions.
9.1. Each Party certifies that it holds the intellectual property rights and permissions required for the concessions specified in the previous articles.
9.2. Each Party certifies to the other, the undisturbed enjoyment of the rights granted under the Agreement. Accordingly, each Party indemnifies in advance the other Party against any claim of any nature whatsoever from any of its employees, partners or 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.
9.3. 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.
9.4. Should the obligations under Article 9.3 not be complied with, the licensee Party shall forfeit the indemnification set out in Article 9.2.
9.5. The licensor puts an end to the loss, at its sole discretion:
9.5.1. either by providing at its expense an element equivalent to the element subject to an action for infringement. The change thus made shall not substantially affect the functionality and performance of the Service.
9.5.2. or by obtaining at its expense for the other Party, all the other necessary permits and licences from the corresponding rights holders.
9.6. The compensation set out in Article 9.5 is deemed to cover the entire loss suffered by the licensee Party. Accordingly, it excludes any other compensation and is deemed to be in full settlement.
10.1. The Client is authorised to make the Service available to third parties duly identified in the Purchase Order or the Sales Proposal or which will become so, by express agreement, during the performance of the Agreement (Hereinafter referred to as the “Beneficiaries”), provided that the Client agrees:
10.1.1. to obtain from each Beneficiary compliance with the Agreement. The Client is responsible for ensuring compliance with the Agreement by each Beneficiary;
10.1.2. to repay in the event of a Beneficiary other than the Client wishing to make a claim of any kind against the Supplier under the Agreement, any amount that the Supplier may be required to pay in respect of the said claim and any lawyers’ or legal fees paid by the Supplier under the said claim. However, the Client may be authorised to make a claim against the Supplier, in case of losses suffered by a Beneficiary because of a direct breach by the Supplier of this Agreement, where such failure causes a direct loss to the Client.
10.2. 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 Service from the day they cease to be controlled directly or indirectly by the Client, for whatever reason.
10.3. Finally, 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.
11. EFFECTIVE DATE / TERM
11.1. Subject to provisions to the contrary in the Purchase Order or the Sales Proposal, this document is effective from the date of the signing of the Purchase Order or Agreement.
11.2. The Agreement is entered into for an initial period (the “Initial Term”) specified in the Purchase Order or the Sales Proposal. Failing this, this first period is for three (3) years.
11.3. Subject to any provisions to the contrary in the Purchase Order or the Sales Proposal, 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 preceding the renewal anniversary date.
12. FINANCIAL TERMS & CONDITIONS
12.1. Subject to provisions to the contrary in the Purchase Order or Sales Proposal:
12.1.1. invoices shall be issued in euros, in advance, due, and prices are deemed to be excluding VAT;
12.1.2. 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;
12.1.3. the Client agrees to pay the amounts agreed between the Parties, and in particular those described in the Purchase Order or the Sales Proposal, within 30 days from the invoice date;
12.1.4. the amount of the annual fee is reviewed annually on the anniversary of the date of entry into force of this Agreement depending on the upward movement of the SANTE 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 = Po x S / So
in which: P is the new price, Po the initial price, S the latest SANTE index published on the invoice date and So the SANTE index published on the date of entry into force of the Agreement.
12.2. 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.
13.1. The Client is responsible in full for the processing of personal data it uses or exploits under the Agreement. The Client agrees accordingly to comply with the laws and regulations in each country governing such processing and the use made of the processed information, in particular, with regard to Belgium, the law of 8 December 1992 and any legislation that replaces or supplements it. In this respect, the Client shall make it its business to make any declaration or to obtain any permission required under these laws. The right of access and correction for the persons concerned shall be exercised directly through the Client.
13.2. In respect of the preceding paragraph, the Client indemnifies the Supplier against all claims and proceedings that may be brought directly or indirectly connected with this matter, as well as the legal and lawyers’ fees related thereto.
14.1. The terms “Confidential Information” mean hereinafter any information, process and/or result, held by one of the Parties and transmitted to the other, whatever the medium used or the form of such communication (written, oral or visual), and including, but without this list being exhaustive, patents, trademarks, software, know-how, manufacturing secrets, plans, drawings, models, designs, specifications, minutes of meetings, studies, development prospects, tenders, consultations of a type that are in particular, strategic, financial, technical or commercial. Determining the confidentiality of such information may result from the presence of any appropriate indication, the particular type of the document or an express oral indication.
14.2. When the receiving Party obtains from the other Confidential Information, the receiving Party agrees, except by express written permission of the other Party: (i) to keep it confidential by taking all useful and reasonable physical, logical and organisational security measures and (ii) not to disclose it to any agent, sub-contractor, or third party whatsoever (iii) not to use it for purposes other than those for which the Confidential Information was provided on the understanding that in any case it is presumed that it is communicated only for use by the Service, (iv) to give an undertaking in respect of the personnel entitled to know about this Confidential Information to maintain its confidential nature.
14.3. The receiving Party is not obliged to treat information as confidential if the said information: (i) is previously known about by it, (ii) is first voluntarily disclosed by the other Party, (iii) is independently developed by the Receiving Party without any use being made of the corresponding Confidential Information, it being however understood that it shall be its responsibility to provide the proof of the independent development of the said Information, (iv) is received in good faith by a third party, in a lawful manner, (v) is communicated to the counsel or auditor of the Receiving Party, whose activity is subject to professional secrecy, (vi) must be disclosed under a mandatory legal provision, (vii) is in the public domain.
14.4. The provisions of this article are valid for the duration of the Agreement and 24 months after it ends.
14.5. The Agreement shall be considered to be Confidential Information.
15.1. In the event of a failure by either Party of its contractual obligations, not rectified within thirty (30) working days from the dispatch of a registered letter inviting it to address them that has remained unsuccessful, the other party shall be entitled to terminate the Agreement automatically and without legal formal notice, without prejudice to any damages to which it may claim.
15.2. In the event of a declaration of insolvency, receivership or liquidation of either Party, the other Party may automatically terminate the Agreement in accordance with the law.
15.3. Each Party shall, at the expiration or termination of the Agreement for any reason whatsoever, immediately stop using the Service or any of its components and return within one month at its expense all Elements, equipment, materials and Confidential Information belonging to the other Party, or, at the latter’s request, destroy them at its own expense and provide all evidence of this destruction.
15.4. More specifically, at the end of the Agreement, the Client agrees no longer to use the Database and to uninstall and destroy the Database. In addition, the Client must provide to Sirius Insight a report of the destruction and removal of the Database within fifteen (15) days of the end of the Agreement.
15.5. In the event of termination, the Client shall pay to Sirius Insight the amount of unpaid services and/or costs incurred until the effective date of termination.
16.1. The Parties agree not to exclude or not to limit their liability in the event of a breach of their obligations of confidentiality and their guarantee against infringement.
16.2. The Client may not limit its liability in the event of a breach of its obligations hereunder for the use of data and/or other information used under this Agreement for any purpose other than expressly agreed between the Parties hereof.
16.3. 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 Elements given to the Supplier by the Client, its sub-contractors, or recipients of the Service, (iii) any delay, inaccuracy or malfunction due to any failure, fault, negligence or omission by the Client, its sub-contractors or any third party over which the Supplier has no power of control or supervision, (iv) a non-compliant use of the Service by the Client or beneficiaries, (v) the use and consequences of the use of any system, network, material or Element belonging to or used by the Client that is not under the exclusive control of the Supplier.
16.4. No Party shall be held liable for the consequences of any indirect losses. The following losses are in particular and conventionally deemed to be indirect consequential losses: losses of revenue, of margin, of profits, of orders or of clients.
16.5. 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, the cumulative liability per year of the Supplier under the Agreement, all causes and persons combined may not exceed: (i) for incidents originating in the first contractual year, the total of the amounts paid or payable by the Client for the first six months, as set out in the Purchase Order or the Sales Proposal, (ii) for incidents originating at a later time, the amount ex-VAT charged to the Client and actually paid under the Agreement in the last 6 months under the Agreement prior to the occurrence of the incident.
16.6. The Client acknowledges the validity of this liability ceiling and shall refrain from questioning it. The Parties acknowledge that the prices have been set according to the allocation of the risks between the Parties, whence the liability ceiling that results. This undertaking is a key precondition of the Supplier’s commitment.
17. TRANSFER / SUBCONTRACTING
17.1. The Supplier may transfer all or part of the rights and obligations arising from the Agreement to an entity of the group to which it belongs, under the provisions of Belgian law, subject to informing the other Party of this as soon as possible. Any transfer, in part or in full, to another entity is prohibited, except with the prior express consent of the other Party.
17.2. The Supplier may subcontract all or part of the Service. In this case, it remains responsible for the Service performed by the sub-contractor.
The Parties declare holding an insurance policy covering the financial consequences of the involvement of their respective professional liability.
Each Party waives, except with the prior written consent of the other, making, directly or indirectly, offers of appointment to an employee of the other Party, or hiring him in any capacity whatsoever, during the term of the Agreement and 24 months after it ends.
Subject to provisions to the contrary in the Purchase Order or Sales Proposal, 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.
21. FORCE MAJEURE
Neither Party shall be liable for any breach of its obligations under the Agreement if such failure results from a situation constituting force majeure as set out in the case-law of the Belgian courts on the day of its occurrence. Each Party shall immediately inform the other Party of the occurrence of a case of force majeure which may prevent it from fulfilling its obligations. The Parties shall then take appropriate measures to mitigate the consequences of the event. However, in case of a persistence of the event for more than 30 calendar days, the Agreement may be terminated by either Party, without compensation.
22.1. Should any provision of this Agreement be declared void, the remaining provisions of the Agreement shall remain in force.
22.2. Should either Party not claim the non-fulfilment by the other Party of any of the obligations under this Agreement, this shall not be construed for the future as a waiver to claim the said failure or the fulfilment of the obligation in question.
22.3. 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.
22.4. 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.
22.5. For the performance of the Agreement, the parties’ address of service shall be at their respective head offices stated in the Purchase Order.
22.6. 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 Nivelles.