General Terms and Conditions of Sale
The agreement between CoolTalent and Customer (referred to as the “Agreement”) consists of the following, in order of precedence:
- one or more Orders;
- the provisions in the Special Terms and Conditions, if any;
- the Schedules to an Order or any documents expressly incorporated into this Agreement or expressly referred to on an Order; and
- these General Terms and Conditions.
Together these documents embody the entire legal and contractual relationship between the parties relating to the subject matter of this Agreement and save as may be expressly referred to in this Agreement, terminates, cancels and supersedes all prior representations, agreements or understandings (written or oral) with respect to this Agreement and its subject matter.
The definitions in this clause 1 apply except where an alternative definition is given in an applicable clause of the Special Terms and Conditions in which case the definition in the Special Terms and Conditions shall take precedence:
- “Commencement Date”: in relation to a Service, the date of commencement of that Service.
- “Equipment”: any items referred to as Equipment on an Order.
- “Intellectual Property Rights”: copyright, database rights and patents (including patent applications).
- “Order”: an order accepted by CoolTalent in writing on CoolTalent’s order documentation prevailing at the time of acceptance.
- “Products”: the Equipment, Programs and/or Services delivered by CoolTalent set out on an Order, or any of them.
- “Programs”: those items referred to as Programs or Software on an Order (including any associated documentation which may be supplied with them).
- “Public Holidays”: public bank holidays in Belgium;
- “Service(s)”: the work referred to on an Order which CoolTalent will perform and the associated items, if any, which CoolTalent will deliver, in support of the Equipment or Programs.
- “Statement of Work”: the latest product or service description or statement of work, however described, applicable to the Products published by CoolTalent (including electronically) at the date of CoolTalent’s acceptance of the relevant Order or where no such document is published the description of the Products as set out on the Order.
2.1 All Products are supplied by reference only to their Statement of Work. The Products shall not comply or conform to any performance or other requirements unless expressly agreed upon between parties. Any other descriptive material provided by CoolTalent to Customer is provided to assist Customer, and does not form part of any contract and CoolTalent is not legally responsible for its contents.
2.2 Customer acknowledges that it is responsible for selecting Products and technology to achieve its required results including in combination with other equipment or software with which the Products are intended to be used.
2.3 CoolTalent’s performance under this Agreement in general and the development or supply of Products qualify as an obligation of means (“obligation de moyens”).
2.4 Where this Agreement comprises more than one Order, each Order shall be regarded as a separate Order except where stated to the contrary.
- Licence to Use
3.1 CoolTalent grants to Customer a non-exclusive licence under CoolTalent’s patents, copyrights, database rights and other intellectual property rights to use the Equipment and any items related to the provision of Services, in the form and for the purpose for which they are supplied. In respect of Programs, the licence is further defined by the Special Conditions for Program Licences.
3.2 If any unauthorised modification is made either to any Products (this includes but is not limited to obtaining access without the express authority of CoolTalent) then Customer shall be in breach of contract and CoolTalent shall be entitled to terminate forthwith any licence applicable to any such Products.
- Intellectual Property Rights and Confidentiality
4.1 This Agreement does not transfer any rights or interests to CoolTalent with regard to the software which, on the Commencement Date, belongs to Customer or third party suppliers (“Customer Software”). The only rights CoolTalent has vis-à-vis this software is a restricted licence to access and use this Software insofar is required to provide the Services in accordance with this Agreement.
4.2 This Agreement does not transfer any rights or interests to Customer with regard to the software which, on the Commencement Date, belongs to CoolTalent or its third party suppliers (“CoolTalent software”). If applicable, Customer shall have a non-transferable and non-exclusive licence to use the CoolTalent software in accordance with the applicable documentation for software licences. Moreover, Customer does not have any rights or interests in the development tools, know-how, methods, processes, technologies or algorithms that are used or developed by CoolTalent in the provision of the Services, or which are based on one of CoolTalent’ or its third party supplier’s business secrets or intellectual properties.
4.3 Without prejudice to the rights of third party suppliers on existing software and on any modifications in this respect, the Intellectual Property Rights to the Products developed for Customer in pursuance of this Agreement shall be transferred to Customer when CoolTalent has received all payments with regard to the provision of these Services. In spite of the preceding, CoolTalent retains the right to use the ideas, methods or concepts used or developed in the provision of the Services in all other cases or for other customers, irrespective of the fact whether these can be patented or not.
4.4 CoolTalent warrants, subject to the other terms of this Agreement, that Customer’s use in the Benelux of Products supplied by CoolTalent, in accordance with their respective Statements of Work and any other instructions CoolTalent may give concerning their use, will not infringe the Intellectual Property Rights of any third party in the Benelux. CoolTalent’s liability under this warranty shall be conditional on the following:
- Customer must promptly notify CoolTalent in writing of any allegation made by a third party that Customer’s use of the Products infringes its Intellectual Property Rights;
- Customer must make no admissions in relation to such an allegation without CoolTalent’s consent.
4.5 Where any allegation is made or, in CoolTalent’s opinion, is likely to be made, by a third party that its Intellectual Property Rights are being infringed by Customer’s use of Products supplied by CoolTalent, CoolTalent shall have the option to do any or all of the following:
- repay to Customer any sums paid by Customer in respect of the affected Products (and, if it so elects, to require Customer to deliver up the Products to CoolTalent) and if CoolTalent does so it shall have no further liability whatsoever to Customer under this Agreement in respect of or arising from such Products;
- at its own expense modify or replace the Products (in such a way that their functionality overall is not materially adversely affected) so as to avoid the infringement; and / or
- conduct and/or settle all negotiations and litigation with any such third party in which case Customer shall not have any dealings with such third party in relation to its allegation but shall give CoolTalent all reasonable assistance required by CoolTalent in such negotiations or litigation. The costs incurred or recovered in such negotiations and litigation will be for CoolTalent’s account.
4.6 Save as provided in clause 4.4, CoolTalent shall have no liability whatsoever to Customer in respect of any infringement or alleged infringement of any Intellectual Property Right or other rights and in any event CoolTalent shall have no liability to Customer hereunder for any infringement which is based on the use of any item supplied by CoolTalent other than in accordance with the terms of this Agreement and their respective Statements of Work and any other instructions CoolTalent may give concerning their use, or in combination with any goods or services not supplied by CoolTalent.
4.7 The parties agree not to use nor to disclose to any third party (other than for the purposes of performing the Agreement), any secret or confidential information or method of working revealed by the other. CoolTalent’s software, tools and systems (whether or not supplied as Programs) are expressly declared to be secret and confidential information for the purpose of this clause 4.
- Taxes, Rates, Levies
Customer shall pay, at the same time as the principal sums to which they relate, any taxes (including value added tax, sales taxes, duties and other taxes of all kinds), rates or governmental levies (other than those assessed on the profits or gains of CoolTalent) which are payable in connection with the supply of Products.
6.1 The Customer shall make payments to CoolTalent under this Agreement on the due dates for payments as specified in the relevant Order. Payments will be due within 30 days following date of CoolTalent’s invoice. Without prejudice to any other rights of CoolTalent in connection with Customer’s default, invoices remaining unpaid on their due date shall automatically give rise to an obligation on the part of Customer to pay interest for late payment at the ECB rate plus 5 percentage points. Customer shall further be obliged to compensate CoolTalent for any judicial and collection costs (including reasonable attorneys’ fees) incurred by CoolTalent with a minimum of 150€.
6.2 Where the cost to CoolTalent of performing this Agreement increases as a result of circumstances beyond CoolTalent’s reasonable control including if any assumptions set out in the Statement of Work or on the Order are not met in whole or in part, Customer shall pay CoolTalent’s reasonable additional costs arising as a result of such circumstances by way of additional charges, which shall be invoiced and paid in accordance with the terms of this Agreement.
- Customer Obligations
7.1 Customer will provide all useful information and reasonable assistance in order to allow CoolTalent to perform its obligations under the Agreement.
7.2 Customer will at its own expense prepare its premises prior to delivery of the Products and provide electrical supplies, environmental conditions, telecommunication facilities and cabling necessary for each of the Products to be used in accordance with its Statement of Work or as otherwise advised by CoolTalent.
7.3 To enable CoolTalent to fulfil its obligations to Customer, Customer will at its own expense give CoolTalent access to equipment or computer programs (including Equipment and Programs) in respect of which CoolTalent provides services or in respect of which CoolTalent is delivering or installing Equipment or Programs (in this clause 8, referred to as “Serviced Equipment”), provide such information and documents that CoolTalent reasonably requires in order to provide the Products, make available appropriate staff who are familiar with Customer’s programs and/or applications, and provide suitable working space and facilities.
7.4 Customer shall use and care for the Serviced Equipment in accordance with the applicable manufacturer’s recommendations (in the case of the Equipment and Programs in the manner contemplated by the Statement(s) of Work and any other directions for their use issued by CoolTalent from time to time), save to the extent that CoolTalent is contracted to do so as part of the Services. Customer shall supervise, manage and control the proper use of such equipment (including any routine Customer maintenance and any Customer enhancements or modifications authorised by CoolTalent) in the manner that CoolTalent may reasonably specify from time to time. Customer shall also ensure that adequate backup plans, restart procedures, checks for accuracy and security of data together with other necessary procedures and controls are provided by Customer to meet its requirements.
7.5 Customer will accept full responsibility for the performance of the Serviced Equipment (including any additional costs incurred by CoolTalent in rectifying any such performance) if performance is adversely affected by Customer’s use of media and consumables which either are not suitable for use with the Equipment or have been treated with any substance (other than as requested by CoolTalent).
7.6 Customer will be responsible for any loss or damage or reduction in performance that in CoolTalent’s reasonable opinion is attributable to any information, assistance, equipment, programs or services not supplied by CoolTalent or to alterations or modifications made (other than by CoolTalent) to any Serviced Equipment.
7.7 Customer will obtain all necessary consents, licences and approvals in relation to third party products (other than those supplied by CoolTalent as part of the Products) and will indemnify CoolTalent for any liability incurred by CoolTalent as a result of Customer’s failure to obtain such consents, licences and approvals.
7.8 Customer will perform the obligations attributed to it, if any, on any Order or Schedule to an Order.
- CoolTalent’s Liability
8.1 Notwithstanding anything to the contrary in this Agreement, the liability of CoolTalent to Customer under or in connection with this Agreement, whether arising from contract, negligence or howsoever, shall be limited as follows:
- in the case of liability arising from death or injury to persons as a result of any act or omission of CoolTalent which is negligent or to any proven fraud on the part of CoolTalent or of others for which it is at law responsible, there shall be no limit;
- in the case of damage to physical or real property, the limit of liability shall be €100,000; and
- in respect of any other liability, the limit of liability shall be the lesser of (i) the aggregate Charges paid by Customer throughout the last 12 months of the Agreement and (ii) €100,000;
provided that CoolTalent’s overall maximum liability under this Agreement pursuant to sub-clauses (b) and (c) shall be limited to €100,000 in aggregate.
8.2 In no event will either party be liable for:
- loss of profits, loss of revenue or loss of anticipated savings;
- loss of business or opportunity, loss of goodwill or injury to reputation;
- any unforeseen, special, consequential or indirect loss or damage;
arising out of or in connection with this Agreement. This shall not affect the liability of Customer to pay the charges or any other sums falling due to CoolTalent under the terms of this Agreement.
8.3 Neither party shall have any liability to the other in respect of a breach of this Agreement unless it has issued legal proceedings in respect of such breach within 12 months of the date when that party first became aware of the circumstances constituting the breach.
- Third Party Rights
A person who is not a party to this Agreement has no right to enforce any term of this Agreement but this does not affect any right or remedy of a third party which exists or is available under the law.
10.1 If Customer is in breach of a material provision under this Agreement (which includes any failure by Customer to pay a sum to CoolTalent on the due date for payment) and does not remedy that breach within 14 days after receiving written notice from CoolTalent, or if CoolTalent terminates a licence pursuant to clause 3.2 or exercises its rights under clause 4.5, then CoolTalent may, at CoolTalent’s option, immediately terminate either the relevant Order (or part of an Order) affected by the breach, or the whole Agreement. Alternatively, CoolTalent may suspend the performance of its obligations under that Order or the Agreement until the breach is remedied. Customer will have no claim against CoolTalent on account of CoolTalent’s suspension of performance of its obligations in these circumstances and CoolTalent shall be entitled to make such amendments to the provisions of this Agreement relating to delivery and payment dates as are appropriate to reflect the period of suspension.
10.2 If either party files a petition or has a petition presented for an arrangement with creditors (“gerechtelijk akkoord” – “concordat judiciaire”) or for its voluntary or forced liquidation (bankruptcy) or calls a meeting to propose a resolution for its voluntary or forced liquidation, or files a petition or has a petition presented for the appointment of an administrator, receiver or trustee over it or any of its assets, or has any such administrator, receiver or trustee appointed for it, or makes any voluntary arrangement with its creditors, then the other party may terminate the Agreement by written notice to the other, taking immediate effect.
- Effects of Termination
11.1 Upon termination for any reason, all sums due to CoolTalent shall become immediately payable by Customer without set-off or deduction.
11.2 Upon completion of any work by CoolTalent or termination of any Service all copies of programs, manuals and documentation whether comprising the Diagnostic Materials or otherwise and used by CoolTalent for the purpose of providing such service or performing the work will forthwith be returned to CoolTalent.
11.3 Upon termination for whatever reason, Customer will immediately deliver up any CoolTalent property which it has no contractual right to retain and CoolTalent may enter any premises to recover and remove such property.
12.1 Neither party will be liable for delay in or for failure to perform obligations if that delay or failure is caused by circumstances beyond the reasonable control of the party affected including, but not limited to, lock-out, strike, refusal or revocation of licence, industrial dispute or impossibility of obtaining materials.
12.2 Customer may not assign or delegate any of its rights or obligations under this Agreement in whole or in part without the written consent of CoolTalent. CoolTalent may assign or delegate any of its rights or obligations under this Agreement to any CoolTalent affiliate or subsidiary.
12.3 All notices hereunder shall be in writing addressed to the parties at their respective addresses set forth on the Order or such other address as may be notified from time to time by either party to the other.
12.4 No terms or conditions hereof shall be deemed waived and no breach or default excused unless such waiver or excuse shall be in writing and signed by the party issuing the same.
12.5 No variation of this Agreement or of any of the documents referred to in it shall be valid unless it is in writing and signed by or on behalf of each of the parties.
12.6 The Agreement shall be governed by the laws of Belgium. Without prejudice to clause 14 (dispute resolution procedure) the parties may submit any dispute to the exclusive jurisdiction of the Brussels courts. Notwithstanding the other provisions of this Agreement, CoolTalent shall be entitled to bring an action in any jurisdiction where this relates to the protection of its Intellectual Property Rights or other rights, or those of its licensors.
12.7 The headings in the Agreement are inserted for convenience only and shall not constitute a part of or be referred to in interpreting the Agreement.
12.8 Customer agrees that the Agreement does not impose on CoolTalent any obligation to verify the suitability of the Products for Customer’s particular purposes, whether or not those purposes have been expressed to CoolTalent or not and whether or not CoolTalent could reasonably have been aware of any such purposes. It is therefore Customer’s responsibility to ensure that the Products are suitable for its purposes. Customer further agrees that no employee of or agent acting on behalf of CoolTalent (other than a director) is authorised to make any representation with regard to the suitability of the Products for any purpose of Customer.
12.9 Nothing in this Agreement shall create a partnership, joint venture, agency arrangement or any other type of a fiduciary relationship or the relationship of employment between CoolTalent and Customer.
- No hiring
13.1 Until 12 months after completion of the Service or termination of the Agreement, whichever is later, neither party will solicit the employment or services of any personnel of the other party who has been engaged in connection with the Services.
13.2 A party in breach of this provision 13.1 shall pay to the other by way of liquidated damages a sum equal to 12 months of gross salary or fees of that person with a minimum of 75,000€ and without prejudice to any other loss or damages claimed in court.
- Dispute Resolution Procedure
Any question or difference which may arise concerning the construction, meaning or effect of this Agreement, or any matter arising out of or in connection with this Agreement shall in the first instance be escalated to the authorized representatives of CoolTalent and Customer nominated for this purpose for discussion and resolution as soon as reasonably possible and, in any event, within 20 days of such referral. If the unresolved matter is having a serious effect on the performance of this Agreement, the parties will use reasonable endeavours to reduce the elapsed time in completing the process. Neither party may initiate any legal action until the process has been completed, unless such party has reasonable cause to do so to avoid damage to its business or to protect or preserve any right of action it may have, including without limitation to seek injunctive relief in respect of any breach of its Intellectual Property Rights or similar rights.