General Terms and Conditions GIM

DEFINITIONS

1. For the purposes of these General Terms and Conditions, the following terms are defined as stated:

“General Terms and Conditions” means these general terms and conditions.

“Special Terms and Conditions” means the terms and conditions relating specifically to the type of Services.

“Services” means the services described in more detail in the Special Terms and Conditions and carried out by GIM in execution of the Agreement, including Software Applications, Documentation, designs, studies, Reports and preparatory materials (“Deliverables”), whether or not developed exclusively for the Client. The supply of Products by GIM is deemed a Service.

“GIM” means Geografic Information Management NV, having its registered office at Ubicenter D, Philipssite 5 box 27, 3001 Leuven, RLP Leuven no. 0454.064.819, and any of its assigns under special or general title.

“Client” means the legal person issuing the order.

“Agreement” means, as the case may be, (i) the quotation accepted by the Client, or (ii) the agreement entered into by GIM and the Client, or (iii) any other written contract entered into by GIM and the Client relating to the supply of Services and/or Products. The Agreement comprises, where applicable, the following documents, in descending order of importance: (1) the quotation, (2) the Special Terms and Conditions, (3) these General Terms and Conditions, (4) the order and (5) the quotation request or estimate, in each case inclusive of all and any annexes.

“Products” means standard products, excluding products developed by GIM in the context of this Agreement.

“Confidential Information” means the terms of the Agreement and of the documentation and information (including, without limitation, quotations, reports, Deliverables, Software Applications, and so forth) received from the other Party in connection with performance of the Agreement.

SCOPE OF APPLICATION

2. These General Terms and Conditions, supplemented as the case may be with Special Terms and Conditions, are applicable to all present and future Services/Products supplied by GIM for the Client. Should documents from the Client, such as a bill of specifications, quotation request, order or others, make reference to conditions worded in other terms, those conditions will not in any way apply to the Services/Products. Each quotation, order and/or Agreement resulting herefrom is governed by these General Terms and Conditions.

QUOTATION

3. The quotation is based on the details in the quotation request, bill of specifications or any other document issued by the Client in which the Services/Products are described. These details are deemed to be accurate and complete. The Client relieves GIM of any investigation or information obligation in this regard. All the consequences of any errors or gaps in the quotation request, bill of specifications or any other document issued by the Client are borne by the Client, which will hold GIM harmless.

4. The quotation is only valid during an acceptance period of thirty (30) days from the date of the quotation. After expiry of the acceptance period, GIM is not bound by any acceptance of the quotation by the Client. If, at the request or with the consent of the Client, GIM commences supplying the Services/Products before the Client accepts the quotation, performance of the Agreement will be deemed tacit acceptance of the quotation by the Client.

5. Excepting tacit acceptance as provided for in article 4 of these General Terms and Conditions, acceptance by the Client of the quotation must be in writing by its placing an order. If the order differs from the quotation, GIM is not bound by the order and no Agreement is formed unless GIM goes on to expressly accept the order in writing.

COMMENCEMENT

6. The Agreement comes into effect on the date on which GIM accepts the Client’s order.

7. If the Agreement provides for no actual date of delivery of the Services/Products, GIM will stipulate that date and notify it to the Client in writing.

CHANGES TO THE TERMS AND CONDITIONS OF THE AGREEMENT

8. Changes to the Agreement at the request of either Party are only binding on the Parties if they are agreed in a document signed by both Parties containing a description of the actual change(s) and the consequences thereof in respect of (at least) price and deadline. Failing any such document and if the Client is informed in writing of execution of the changed or additional Services/Products, it may not refuse to pay for the relevant Services/Products if the Client has not objected to their execution.

9. Additional works that result from any errors or gaps in the quotation request, bill of specifications or any other document issued by the Client must be paid for in full by the Client in accordance with the provisions of article 8, above.

PARTIES’ RIGHTS AND OBLIGATIONS

10. The Client must lend GIM every cooperation that is needed for proper performance of this Agreement. This includes, inter alia, GIM’s having at its disposal: (i) files, documents or other, relevant information for the supply of Services/Products prior to commencement of the supply of Services/Products; (ii) physical access to the Client’s premises where Services/Products are to be supplied by GIM, in the constant presence of a representative of the Client; (iii) premises fitted with all means of communication (telephone, internet, etc.); (iv) permission to carry out all and any acts using any means that are useful or necessary for preparing and executing its obligations under this Agreement without having to consult with the Client beforehand; and (v) one or a limited number of contact persons for technical, administrative and other matters connected to the Services/Products.

11. The Client recognises and accepts that failure to give this cooperation, information or access to GIM may affect supply of the Services/Products. GIM will not be liable for delays in supply or shortcomings in the Services/Products if due to the Client or a third party.

12. The Client is responsible for obtaining and maintaining at its own cost each licence, registration, permit or consent that is needed for execution of its obligations under this Agreement.

13. The Client is liable for loss of or damage to goods that are the property of GIM and/or its suppliers but that are in its possession or under its control (unless such loss or damage is fully attributable to an act or omission on the part of GIM).

14. The Client undertakes to keep the identification code(s) it receives (password, user name, etc.) secret and confidential. Each use of the identification details will be made under the Client’s liability. In the event of loss, theft or fraudulent use of any of these details, the Client must immediately inform GIM thereof and confirm such notification by recorded delivery letter.

15. GIM is responsible for supply of the Services/Products in accordance with the provisions of the Agreement. Unless otherwise provided in the Agreement, the Services/Products are supplied by GIM during GIM’s normal working hours.

16. GIM guarantees that the Services are carried out according to applicable market standards and by qualified personnel.

INVOICING AND PAYMENT

17. The price stated in the quotation is expressed in euros unless otherwise stated. This price is exclusive of VAT, delivery and carriage costs and other taxes and expenses for which the Client is liable.

18. If the cost price rises by more than five (5) per cent over the quotation or if the Services/Products are supplied more than three (3) months after the date of ordering or if the Client changes the scheduled supply or execution date, GIM is entitled to increase the prices in proportion to the rise in the cost price of the materials, insurance, services or wage costs.

19. The sums due pursuant to this Agreement will be charged in accordance with the terms set down in the quotation.

20. Unless otherwise agreed in writing, invoices issued by GIM are payable within thirty (30) days of the date of the invoice. If payment is not made within the set deadline, the provisions of the Act of 2 August 2002 to combat payment arrears in commercial transactions apply automatically and without notice of default.

21. All complaints must reach GIM in writing within no more than fifteen (15) calendar days after the invoice date. In all other cases, the invoice and Services will be deemed irrevocably and definitively accepted. The undisputed part of the invoice is deemed accepted and must be paid within the regular payment deadline.

22. If an invoice is not paid within the set deadline, GIM reserves the right to suspend performance of the Agreement until full payment is made or to regard the Agreement as rescinded.

23. GIM reserves the right to apply set-off between amounts that the Client owes it and any amounts that GIM owes the Client. In the event of bankruptcy or any other form of insolvency on the Client’s part, all amounts due by the Client fall immediately due and set-off is applied against any amounts still due by GIM.

CONFIDENTIALITY

24. Both Parties will refrain from publicly disclosing the Confidential Information of the other Party and from using it other than for the purpose for which the Confidential Information was received, except in so far as disclosure or use is necessary for the purposes of performing the Agreement.

25. The Confidential Information remains the property of the Party communicating it. Communication of Confidential Information does not imply the grant of any licence or other intellectual or industrial property right.

26. If the receiving Party is required by law or on the order of a competent court or public authority to publicly disclose all or part of the Confidential Information, that Party will without delay notify the communicating Party thereof in writing and offer it the opportunity to seek legal means to keep the Confidential Information confidential. In any event, the receiving Party will only divulge the Confidential Information that it is legally bound to do and will take all possible measures to keep the Confidential Information confidential.

27. The confidentiality obligation remains applicable till three (3) years after termination of the Agreement.

INTELLECTUAL PROPERTY RIGHTS

28. All intellectual property rights over the Deliverables/Products remain the exclusive property of GIM and/or its suppliers. The Client may not pretend any claim to an interest in or ownership of such intellectual property rights and acquires no rights other than those explicitly referred to in the Agreement.

29. The Client must use the Deliverables/Products strictly for its own business purposes.

ACTS OF GOD

30. Neither Party will be liable for delays or shortcomings in the provision of its Services/Products if they result from facts or circumstances that are outside its control, were not foreseen or it could not avoid, such as war, riot, disturbances, civil revolt, acts by civil or military authorities, embargoes, explosions, strikes or industrial conflicts (including those in which its staff is involved), cable breakages, flood, enduring frost, fire or tempest, energy restrictions and defects or delays in the supplies of subcontractors etc.

31. Where a Party invokes such an act of God, that Party has the right to suspend or limit provision of the Services/Products in order to protect the operating environment, and this will not entitled the other Party to any claim for compensation.

32. Each Party must do everything possible to keep the duration of an act of God to a strict minimum.

33. If such facts or circumstances pertaining to an act of God continue for more than three (3) months, each Party may terminate the Agreement ipso iure by recorded delivery letter without compensation being due, albeit the Services/Products provided shall still be due.

LIABILITY

34. GIM’s obligations are best-efforts obligations. Unless otherwise agreed in writing, all dates of execution and/or delivery are purely indicative. Failure to meet the stated deadlines may in no event be cited by the Client as a ground to refuse delivery, suspend or terminate the Agreement, not pay GIM’s invoices or claim compensation.

35. GIM is only liable for loss in contract or tort caused by proven breach by it of a duty of care for which it is liable, within the following restrictions:

-  If GIM breaches its obligations under this Agreement, the Client will serve GIM with a written notice of default no later, on pain of nullity, than two (2) months following the date on which the event occasioning the loss occurred. The notice of default must contain a detailed description of the shortcoming and set a reasonable deadline of at least fifteen (15) working days for remedying the shortcoming. If possible, GIM will remedy the shortcoming itself, in which event the Client cannot claim any compensation.  

-  In any event, GIM’s liability is limited to making good the foreseeable, direct, personal and certain loss sustained by the Client, under exclusion of recompense of indirect and consequential losses such as additional expense, loss of income or profit, loss of clientele, loss of or damage to data, loss of contracts and third-party losses.

-   GIM is not liable for the content of information that is sent or stored by the Client or a third party making use of GIM’s Services.

-  In all cases where GIM’s liability is claimed against, its liability is limited to the total sums that the Client has paid to GIM in the context of this Agreement during the six (6) months preceding the cause of the loss. This sum will in no event exceed the total amount of EUR 100,000 per calendar year.

NON-SOLICITATION

36. During this Agreement and for a period of six (6) months following its termination, the Client is prohibited from directly or indirectly employing any members of GIM’s staff (employees, consultants or persons engaged in any other capacity) who are or have been involved in performance of the Agreement as employees or directly or indirectly engaging them for the performance of assignments, services or tasks in any other capacity. The Client also undertakes this commitment for and on behalf of all its affiliated companies within the meaning of section 11 of the Companies Code.

37. Any breach of clause 36 will result in payment by the Client of liquidated damages equal to one (1) year’s gross pay of the relevant employee or former employee as paid during the last year that he was employed by GIM, without prejudice to GIM’s right to claim higher damages if its actual loss should be greater.

DATA PROTECTION

38. If the Services provided enable the Client to collect and process the personal data of its own clients, these activities are carried on under the Client’s exclusive liability. The Client recognises that it acts as the data controller and is at all times responsible for the personal data. In that case, the Client is responsible for applying the Data Protection Act of 8 December 1992. If necessary, the Client undertakes to comply with the entire provisions of said act and to hold GIM harmless in the event of third-party claims based on any breaches of that act.

MISCELLANEOUS PROVISIONS

39. Should one or more provisions of the Agreement be in contradiction with applicable law or invalid for any other reason, this Agreement remains valid as regards the remaining clauses.

40. This Agreement is the full agreement between the Parties regarding GIM’s Services and prevails over all prior written or verbal proposals and agreements with regard hereto.

41. The Client may not without the prior written consent of GIM assign to a third party the rights and obligations incumbent on it vis-à-vis GIM regarding performance of the Agreement.

42. GIM reserves the right to entrust all or part of performance of the Agreement to subcontractors.

43. Save for express objections by the Client, GIM may use the Agreement as a reference for its commercial business.

44. Non-exercise by either Party of any of its rights will under no circumstances be construed as a waiver of those rights.

45. This Agreement is governed by Belgian law. The United Nations Convention on Contracts for the International Sale of Goods does not apply. In the event of disputes that cannot be settled out of court, the Leuven courts have exclusive jurisdiction.

SALE OF PRODUCTS

46. The Products sold by GIM to the Client are subject to the standard terms and conditions of the manufacturer, importer or distributor and are linked to the standard terms and conditions for maintenance. GIM does not provide any specific or additional warranty whatsoever over and above the warranty of the manufacturer, importer or distributor.

47. The Products are supplied by GIM carriage paid to the agreed delivery address (Incoterms 2000). GIM will use appropriate commercial means to deliver the Products within the agreed deadlines. The Client will take delivery of the Products at the agreed time. If the Client fails to take delivery of a Product, all costs incurred by GIM as a result are invoiced to the Client.

48. If the Client does not send GIM a written complaint within five (5) working days after the date of delivery of Products, the Products are deemed accepted. Approval of (the) Product(s) implies that the Client accepts all visible defects.

49. GIM retains title over all Products that are delivered to the Client until payment of the full price including all costs and taxes.

50. The choice of Products, the analysis of their technical characteristics and the compatibility thereof with the Client’s environment in all events remain the exclusive responsibility of the Client. GIM may propose Products to the Client in certain circumstances, but such proposals do not imply any warranty or obligation on GIM’s part. The Client places its order at its own risk and, by placing its order, accepts full responsibility for the choice of Products.

51. If necessary, and provided they have the same functionality, the Products delivered by GIM may be of another make than those already used or those stated in the Quotation.

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