These general terms and conditions (“General Terms and Conditions”) constitute, where applicable together with the engagement letter or engagement letters (“Engagement Letter”), the entire agreement between the parties (the “Agreement”).All terms used in the Engagement Letter have the same meaning as in these General Terms and Conditions and vice versa. In the event of a discrepancy between the Engagement Letter and these General Terms and Conditions, the latter shall prevail, unless they have been modified by the Engagement Letter with a specific reference to the relevant clause of the General Terms and Conditions.“We” (or “us”) refers to “BOUSFINX CommV (trading under the name BACKBONE Company Services), with registered office at Nijverheidstraat 14, 9140 Temse, RPR Ghent, enterprise number VAT BE 0765.569.629.” References in these General Terms and Conditions to "the client" relate to any other party than us in the Agreement.
These General Terms and Conditions apply to all services we provide, as specified, where applicable, in the Engagement Letter (the “Services”). If applicable, the Services may be further listed, expanded, or clarified via email or other written medium.
The Agreement is formed and takes effect on the commencement date (the “Commencement Date”), i.e.:
From the Commencement Date, all professional relationships between the parties shall in any case be governed by these General Terms and Conditions.
3.1 The Services are provided based on the information and explanation given by the client, the accuracy of which we will not verify, unless provided for in the Engagement Letter.
3.2 When providing the Services, we will not be deemed to possess knowledge from other assignments, except to the extent provided for in the Engagement Letter.
3.3 Unless otherwise required by law, we bear no responsibility for the impact on our Services of events that occur after the termination date of our Services.
4.1 We shall only be bound by the final version of our designs, documents, advice, analyses, and calculations presented to the client in written form, signed by a person duly authorized to do so (the “Deliverables”).
4.2 Draft documents, whether in electronic or written form, and oral advice, do not constitute Deliverables. We accept no responsibility for the content or use of such draft documents or oral advice, unless their content is later confirmed as a final version in accordance with Article 4.1.
5.1 In exceptional circumstances, we may decide to modify or withdraw a Deliverable when, in our professional judgment, this appears necessary – for example, if we become aware of facts or circumstances unknown to us at the time the Deliverable was prepared. This right to modify or withdraw shall also apply at any time if we subsequently discover gaps or inaccuracies in the Deliverable that could affect its content.
5.2 In no event shall this right to modify or withdraw be interpreted as an obligation on our part to modify or withdraw a Deliverable.
We retain copyright and all other intellectual property rights on everything we develop before or during our assignment, including our systems, methodologies, software, and know-how. We will also retain all copyrights and other intellectual property rights related to all our Deliverables provided to the client as part of the assignments to be performed, including documents and files in electronic form.
Upon termination of the Services, we will retain all related documents and files for the period provided by law for the type of Services subject to the Engagement Letter. After this period, and unless otherwise agreed in writing separately, we may destroy them without prior notice to the client.
8.1 The parties undertake to comply with all relevant laws and regulations prohibiting, preventing, and penalizing acts of corruption and related criminal or tortious acts. Parties shall observe these laws and regulations in all their transactions and relationships, whether or not related to this Agreement and the Services provided under it, regardless of the form or extent of the acts.
8.2 The parties shall pass on the obligations referred to in Article 8.1 to their employees and directors and ensure that third parties involved in the execution of this Agreement or in the execution of a project that is part of this Agreement are contractually bound by the obligations referred to in Article 8.1.
9.1 To the extent that our Services depend on the information and explanation to be provided by or on behalf of the client, the client must ensure that this information and explanation are provided in a timely manner and are complete, accurate, and not misleading. If the information or explanation is based on assumptions, the client shall provide us with the relevant details. The client is responsible for informing us immediately of any changes to the information or statements provided as soon as reliance on them is no longer justified or the previously submitted assumptions are no longer valid.
9.2 When the client uses or provides information or documentation from third parties, the client shall ensure that they obtain the necessary permissions from these third parties to allow us to provide the Services. The client is responsible for the relationships with such third parties, the quality of their contributions and work, as well as the payment of their fees. Unless otherwise required by law or stated in the Engagement Letter, we will not verify the accuracy of the information or documentation provided to us by such third parties.
9.3 If the client fails to provide us with the relevant information and explanation necessary for proper execution of our assignment, this may lead to the impossibility of delivering or completing the Services or may result in a reservation being formulated in any Deliverable we are required to produce under the Agreement. Ultimately, and unless otherwise required by law, we have the right, without prior notice, to cease the provision of Services, or to terminate or suspend the Agreement with immediate effect, in accordance with Article 13 below. In that case, our rights shall be determined according to Article 13.3.b below.
10.1 Unless otherwise agreed in writing (including by email), the amount of fees shall be determined on a time-spent basis.
TIME BASIS - Fees are calculated after completion of the assignment based on the time spent by our partners, directors, employees, independent service providers, and agents (the “Staff”). If applicable, advances (“provisions”) may be invoiced.
10.2 In the context of our services, Belgian law concerning professional secrecy shall apply to the transmission of our documents and the testimony of our Staff. However, if the client asks or authorizes us, to the extent permitted by law, or if the law obliges us to provide documents or testify as witnesses, the client shall bear our performance and costs, as well as the fees and costs of our counsel incurred to comply with such requests, provided we are not a party to the proceedings in which information is requested.
10.3 All direct costs specifically contracted with third parties that are necessary for the performance of our Services are not included in the fees and will be invoiced in addition to our fees. At the client’s request, we will provide supporting documents as proof of costs incurred on their behalf.
10.4 Our fees and costs will be invoiced on a regular basis and at the latest upon completion of our Services. Invoices are payable by the client within 14 days of the invoice date unless a longer payment term has been allowed in writing. In the event of non-payment or if the client applies for judicial reorganization, is declared bankrupt, applies for suspension of payments, or if the payment of invoices becomes doubtful, the client shall automatically forfeit the benefit of any extended payment terms previously granted. The non-payment of a single invoice on its due date shall render the outstanding balance of all other invoices, even if not yet due, immediately payable by operation of law.
10.5 Fees and expenses are calculated exclusive of taxes and levies. The client shall pay VAT and all other taxes and levies to which the client is legally subject.
10.6 If the client disputes an invoice, whether in whole or in part, the client must notify us of this in writing by registered mail addressed to our registered office within fifteen (15) calendar days from the invoice date. Under no circumstances shall the client withhold payment of any undisputed portion of the invoice.
10.7 Payments must be made to our bank account as stated on the invoice, quoting the invoice number.
10.8 In the event of non-payment in full within the prescribed payment term, the client shall, by operation of law and without prior notice of default, owe default interest at the rate of two percent (2%) per month, whereby each commenced calendar month shall be considered a full month. This interest rate shall not be lower than the interest rate provided under Article 5 of the Law of 2 August 2002, which is hereby contractually declared applicable.
10.9 If payment is not made within one (1) month after the due date of the payment term, the client shall, in addition to the default interest provided, be charged a compensation as a fixed reimbursement for administrative and collection costs incurred in recovering the amounts due. This consists of a fixed fee amounting to ten percent (10%) of the total outstanding amount, with a minimum of EUR 50.00, increased by EUR 40.00 per reminder and further increased by any additional actual costs incurred, including those for engaging third parties to pursue amicable and/or judicial collection of the claimed amounts.
10.10 Payments shall always be applied first to the interest due under these conditions, then to administrative and collection charges, and only thereafter to the outstanding balance(s) of invoice(s), with the oldest debts being settled first, regardless of any comment(s) or reference(s) made by the client in connection with such payment(s). If the client refuses to pay undisputed amounts, we reserve the right to terminate or suspend the Agreement in accordance with the provisions set forth in Articles 13 and 14.4 below.
The parties agree that all information exchanged under the Agreement shall be treated as confidential. They undertake not to disclose such information under any circumstances, either during or after the termination of the Agreement.
We undertake, both during and after the termination of the Agreement, not to disclose any information concerning the client’s business or operations to third parties if such disclosure could harm the client’s competitive position.
12.1 The concepts relating to the protection of personal data used in this Article 12 shall have the meaning assigned to them under: (i) national legislation implementing the Data Protection Directive (95/46/EC) up to 24 May 2018, (ii) the General Data Protection Regulation (2016/679) from 25 May 2018, and (iii) national legislation implementing the Directive on privacy and electronic communications (collectively referred to as the "Data Protection Legislation").
12.2 We undertake to comply with the applicable Data Protection Legislation when processing information relating to an identified or identifiable natural person in the performance of the Agreement (hereinafter referred to as "personal data").
12.3 The client agrees that we may use their personal data, as well as the personal data of their representatives, employees, and directors, for the purpose of providing the Services, for compliance, regulatory, risk management, and quality control purposes, and for various business purposes (such as client relationship and account management).
12.4 The client undertakes to comply with the Data Protection Legislation and to inform its representatives, employees, and directors about the processing of their personal data for the purposes stated in this Agreement. The client warrants that it has obtained the consent of the individuals whose personal data we process.
12.5 The client confirms that the processing of personal data obtained in the course of providing the Services will not result in any breach of the Data Protection Legislation on our part.
13.1 Duur:
a) Recurring assignments: Unless otherwise specified in the Engagement Letter, the Agreement for recurring assignments shall be deemed to have been entered into for an indefinite duration as of the Commencement Date. “Recurring assignment” means an assignment consisting of successive performances of a similar nature to be carried out at predetermined intervals.
13.2 Termination:
Both parties may terminate the Agreement relating to a recurring assignment at any time under the following conditions:
(i) termination must be communicated by registered letter or by letter signed for receipt;
(ii) a notice period of one (1) month must be observed. During the notice period, the provisions of the Engagement Letter and these General Terms and Conditions shall remain fully applicable.
13.3 Dissolution for cause: The parties may terminate the Agreement under the following circumstances, to the extent permitted by law:
a) By mutual consent.
b) Termination for material breach: Either party may terminate the Agreement by written notice with immediate effect if the other party commits a material breach of any provision of the Agreement that is irremediable or, if remediable, is not remedied within thirty (30) days after written request to do so (or, if not feasible to remedy within such period, if reasonable steps are not taken within 30 days to initiate remediation).
c) Termination for insolvency: Either party may terminate the Agreement by written notice with immediate effect if the other party is unable to pay its debts, has a temporary or judicial administrator or liquidator appointed (or an equivalent thereof in another jurisdiction), convenes a meeting of creditors, ceases operations for any reason, or if, in the reasonable opinion of the terminating party, such an event is likely to occur.
Termination for regulatory reasons: We may terminate the Agreement at any time, with written notice and with immediate effect, if we reasonably believe that performance of the Agreement or any part thereof would or could result in a breach of any legal, regulatory, or independence requirement in any jurisdiction. Notwithstanding the foregoing, we may choose to suspend the Agreement or seek to amend it to prevent such breach.
13.4 Suspension:
a) To the extent permitted by law, either party may suspend the Agreement by written notice if:
(i) in its reasonable opinion, circumstances exist that materially and adversely affect the fundamental assumptions on which the Agreement was based or the performance of its obligations; or
(ii) the suspending party reasonably believes that continued performance would or could result in a breach of any legal, regulatory, or independence requirement by any party or affiliated entity.
b) If the parties agree to resume performance of the Services after suspension, they shall first agree on any necessary modifications to the Agreement resulting from the suspension, including fees, costs, and delivery timelines.
c) If the period of suspension exceeds thirty (30) days, either party may terminate the Agreement with immediate effect by written notice to the other party.
14.1 Unless otherwise provided by law, the following provisions shall apply if the Agreement is terminated before we are able to complete the provision of the Services:
14.2 If the termination is initiated by the client on grounds for which we are not liable, we shall remain entitled to the full amount of the agreed fees, without prejudice to our right to claim damages from the client for all losses incurred. Such compensation may only be claimed if the termination was untimely or unlawful.
14.3 If the termination of the Agreement is initiated by the client on grounds for which we are liable, we shall remain entitled to the portion of the fees corresponding to the part of the Services delivered up to the date of termination, without prejudice to the client’s right to claim compensation from us, in accordance with the provisions and within the limits set forth in Articles 15 and 16 below.
14.4 If the termination of the Agreement is initiated by us without grounds attributable to the client, we shall remain entitled to the portion of the fees corresponding to the part of the Services delivered up to the date of termination, without prejudice to the client’s right to claim compensation from us, in accordance with the provisions and within the limits set forth in Articles 15 and 16 below. Such compensation may only be claimed if the termination was untimely or unlawful.
14.5 If the termination is initiated by us on grounds for which the client is liable, we shall remain entitled to the full amount of the agreed fees, without prejudice to our right to claim damages from the client for any losses incurred.
15.1 Unless otherwise provided by mandatory law, any claim based on or related to this Agreement may only validly be brought against us within one year from the act or omission alleged against us.
15.2 The client undertakes to indemnify and hold us harmless from any claim based on negligence or from any court decision obtained by a third party for compensation of damages related to the Agreement (including interest and legal fees), except where the decision results directly and immediately from our intentional misconduct or fraud.
15.3 We alone shall be liable for the provision of the Services. Accordingly, the client agrees not to bring any claim arising from or relating to this Agreement, whether in contract, tort, or otherwise, against any of our Staff. The foregoing exclusion shall not apply to any liability that cannot be excluded under Belgian law.
16.1 We shall provide the Services with due care and in accordance with applicable legal provisions. Unless otherwise provided by law, the Services we undertake to provide are obligations of means, not obligations of result.
16.2 Our liability towards the client for damages in connection with the Agreement, even where the client represents more than one party, is limited as follows:
The client is solely responsible for protecting its assets and for the prevention and detection of fraud, errors, and non-compliance with laws and regulations. Consequently, we shall under no circumstances be liable for any damages in any way caused by or related to fraudulent or negligent acts or omissions, misrepresentations, or breaches by the client or by its representatives, employees, directors, contractors or agents, or by any of its affiliated entities and their representatives, employees, directors, contractors or agents, or by any third party.
Unless otherwise provided by law:
19.1 During the provision of the Services, the parties may communicate electronically. However, it is impossible to guarantee that the electronic transmission of data will be completely secure, virus-free, or error-free, and such transmissions may therefore be intercepted, altered, lost, destroyed, delayed or rendered unusable. The parties hereby acknowledge that no system or procedure can entirely eliminate such risks.
19.2 The parties hereby confirm that they accept these risks, authorize the use of electronic communication, and agree to use all available and appropriate means to detect the most common viruses before transmitting information electronically. Each party shall be responsible for protecting its own systems and interests in relation to electronic communications, and no party shall be held liable, in any way or form, whether in contract, tort (including negligence), or otherwise, for any loss, error, or omission resulting from or related to the use of electronic communications between the parties.
In providing the Services, we act solely as an independent service provider. Unless expressly stated otherwise in the Engagement Letter, we do not undertake to fulfill any statutory or contractual obligations of the client, nor to assume any responsibility with regard to its activities or operations.
No party shall be liable to the other(s) for failure to perform its obligations due to circumstances beyond its reasonable control, including any advice, warning or prohibition issued by any competent local, national, foreign or supranational authority, or due to a new policy adopted by one of the parties concerning, for example, travel to certain countries or regions. Without prejudice to the provisions of Article 13 above, if such circumstances continue, making it impossible for a party to fulfill its obligations for an uninterrupted period of 30 days, the party shall have the right to terminate the Agreement by giving a 15-day written notice at any time after the expiration of that 30-day period.
No waiver of any provision of the Agreement shall be effective unless made in writing and signed by the party granting the waiver.
Any amendment to the Agreement shall only be effective if agreed upon in writing and signed by all parties. Until such written amendment is concluded, each party shall continue to comply with the terms of the latest agreed version of the Agreement.
24.1 No provision of the Agreement shall have as its object, purpose, or effect the violation of any binding legal provision or public policy rule.
24.2 If any provision of the Agreement is held wholly or partially invalid or unenforceable, such provision (or the relevant part thereof) shall be deemed not to form part of the Agreement. The validity and enforceability of the remaining parts of the Agreement shall in no way be affected.
24.3 The parties shall immediately and in good faith enter into negotiations to replace the invalid or unenforceable provision, possibly with retroactive effect to the Commencement Date of the Agreement, with a valid and enforceable provision whose legal effect is as close as possible to that of the invalid or unenforceable provision.
Without prejudice to the consequences provided by law in the case of transfer of a universality or business division, mergers, demergers, or equivalent transactions, neither party shall assign, encumber or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of the other party or parties to the Agreement.
26.1 This Agreement shall be governed exclusively by and interpreted in accordance with Belgian law, to the exclusion of all Belgian, foreign or international conflict of law rules.
26.2 Any dispute arising from or in connection with the Agreement or the Services shall fall under the exclusive jurisdiction of the courts of the judicial district of East Flanders, Division of Dendermonde.