General terms and conditions

Article 1. Parties

A. PHPro NV, registered address: Veldkant 33A, 2550 KONTICH, Belgium, registered under Belgian law, company number BE0694.507.231, hereinafter referred to as "PHPro".
B. 'The Client', identified by registered address, company registration number.

Each of the Parties, hereinafter jointly referred to as the Parties.

Article 2: Scope of application

The following terms and conditions apply to the purchase of products, all quotations, assignments and order confirmations, to all changes to - or to the assignment, as well as to all deliveries, invoices and all agreements entered into by PHPro, unless PHPro has expressly, unambiguously and in advance agreed in writing to another provision.
With regard to the purchase of software products, the client automatically accepts (by downloading the software) the terms of the PHPro End-User License Agreement (EULA).
Subject to special provisions, the information in the product offerings, quotations (including presentations, brochures e.d.) of PHPro is only indicative in nature and is only given for the purpose of further completion in consultation with the client, with the aim of reaching a final agreement.
The final order and assignment is confirmed by PHPro in a confirmation of assignment. An order confirmation shall consist of (i) a description of the product, (ii) a description of the assignment, (iii) if applicable, the different phases and, if applicable, an indication of the deadlines within which the assignment/phases of the assignment are to be carried out, and (iv) the price of the order/for each phase, including any price adjustments for long-term assignments, and any costs not included in the price. The order confirmation is valid for thirty (30) calendar days from the date on which it is made.
The order confirmation for services contains the complete order, as performed at the price agreed between the parties; the modalities stated in the order confirmation, together with these general terms and conditions and any appendices, are fully applicable to the order. The signing of the order confirmation by the Client constitutes a valid agreement between the parties regarding the order confirmation, its attachments and these general terms and conditions, the latter being fully applicable to the order confirmation and its attachments. If no agreement is reached within thirty (30) calendar days from the date of the order confirmation, the order confirmation shall lapse and PHPro shall no longer be bound by what it provides. The Client expressly waives its existing own terms and conditions, even if they would be defined as the only terms and conditions applicable and/or presented in other communications between the parties. Any amendment or modification of these general terms and conditions must be expressly agreed in writing.
If the client has taken cognisance of these terms and conditions in connection with a written offer or order confirmation, he cannot dispute their applicability in relation to verbal offers and/or order confirmations of a later date.
Cancellation of an order, or part of an order, shall be in writing and shall be expressly accepted by PHPro. Any cancellation of an assignment, whether accepted or not and for whatever reason, shall under all circumstances entitle PHPro to full payment of the agreed fee for the services already rendered, with a minimum of half the amount of the agreed advance payment(s), as well as full payment of all additional costs and fees owed by PHPro to third parties for the commitments and obligations it has already entered into under the assignment and/or after its cancellation.
All attachments, which are attached to the confirmation of assignment, form an integral part of this agreement. The attachment(s) list, inter alia, the characteristics of the project that PHPro will carry out for the client.

Article 3: Prices

All prices and costs stated are exclusive of VAT/TVA/VAT, unless otherwise stated.
According to Art.2 of these general terms and conditions, all prices, including any price adjustments for long-term assignments and costs, stated in our offers are indicative and not binding on PHPro.
All prices, including any price adjustments for long-term assignments, and all costs set out in an order confirmation are for a term set out in the order confirmation. If no term is specified in the order confirmation, the quoted prices are valid for thirty (30) calendar days from the date of the order confirmation.
Unless expressly provided otherwise in the order confirmation, all internal and subcontractor costs are included in the quoted prices. Unless explicitly stipulated otherwise in the order confirmation, none of the transfer and travel costs in Belgium and abroad and/or communication and accommodation costs outside Belgium are included in the mentioned prices.
Changes to the agreed prices, as a result of an extension or modification of the agreed assignment, or for any other reason, can only be made by explicit written agreement. PHPro reserves the right not to start the extended or modified part of the assignment - or, as the case may be, to postpone it - as long as there is no express agreement on the price of the extension or modification.
If discounts are granted to a client, they apply only to that specific assignment or the relevant part of the assignment, for which they are granted. Under no circumstances, even where such discounts are granted repeatedly, will they entitle the Client to similar discounts on subsequent orders.
For prices expressed as a daily rate, the "daily rate" is deemed to apply to an average daily activity of 7.6 hours of work performed equal to 38 hours per week. A worksheet must be signed by the Customer for approval, using the work hour account forms provided. If more than 38 working hours are to be performed, the following rate increase will be charged (not combined):
- Hours worked > 38 hours/week: + 50%
- Hours worked between 10 pm and 7.00 hrs: + 100%
- Hours worked on Saturdays: +50%
- Hours worked on Sundays or public holidays: + 100%

Article 4: Invoicing and payment

Duties agreed with the client will be carried out in phases, as indicated in the order confirmation. Simultaneously with the confirmation of his agreement to the order confirmation, the client shall submit all necessary data and in particular his references (PO number, etc.), so that PHPro can invoice the client.
With regard to online product purchases, full prepayment is required. With regard to services, PHPro shall invoice the services it has provided by mutual agreement between the parties, at the end of each phase of a given assignment/project, or at the end of each month. The invoice shall state the prices for the services provided and, where applicable, any discounts granted as well as the prices for the extension or modification of the assignment in accordance with article 3.5 and the costs not included in the prices mentioned in article 3.4.
On expiry of the payment term, the Client shall be in default by operation of law and without prior notice of default or reminder. After expiry of the payment term, the Client shall owe a conventional default interest rate equal to the interest rate provided for in Article 5 of the Late Payment Act (the Act of 2 August 2002, published in the Belgian Official Gazette of 7 August 2002), plus 3%.

In addition, for each unpaid amount, the Client shall also be liable to pay liquidated damages of 15% for the first instalment of EUR 4,000, 10% for the second instalment of EUR 4,000 to EUR 12,500, and 7.5% for each instalment in excess of EUR 12,500; without prejudice to PHPro's right to claim additional damages for any judicial and legal collection costs.

PHPro reserves the right to claim a higher amount of damages if it can prove that it has actually suffered a higher loss.

If, in the sole opinion of PHPro, the solvency situation of the Client raises more than a reasonable doubt, PHPro is entitled, even after the conclusion of the Agreement, to require the Client to provide the securities required by PHPro for the payment of Services yet to be performed and PHPro has the right to postpone the performance of these Services as long as the required securities have not been provided.
Failure to pay an invoice in full or in part on the due date constitutes gross negligence as referred to in Article 15.2 and entitles PHPro to postpone the (further) performance in full or in part, including work already commenced, until the invoice is paid in full, without prejudice to PHPro's right to claim additional damages and/or to adjust the agreed terms in accordance with Article 5.2 and/or to terminate the agreement in accordance with Article 15.
When a confirmation of assignment or an amendment to an assignment is signed by an
independent intermediary, who presents himself as authorised by the client to enter into the agreement with PHPro on behalf of the client, this intermediary is jointly and severally liable with the client for the payment of the invoices, including any default interest and costs due, as well as for any other compensation owed by PHPro.

An invoice can only be validly disputed if it is served on PHPro by registered letter with return receipt within a period of seven (7) days.

Article 5: Execution times

The execution times are determined by PHPro. Exceeding the execution time for whatever reason, with the exception of gross negligence or intent on the part of PHPro, does not entitle the client to compensation, nor does it give him the right to cancel or rescind the agreement, nor to fulfil any obligation imposed on him under this agreement or under any other agreement between the client and PHPro.
PHPro shall have the right to unilaterally change, extend or suspend the set deadlines if the client fails to provide PHPro with the parts required for the execution of the assignment in a timely manner and/or if the client fails to provide in a timely manner the approvals/confirmations that PHPro may require from the client for the execution of the assignment. In such case, PHPro shall provide the client with a new schedule as soon as reasonably possible after receipt of the relevant parts and/or approvals/confirmations; in any case, the deadlines shall be extended by a term at least equal to the term of the delay in the delivery of the parts and/or approvals/confirmations.

Article 6: Execution of the agreement at the client's premises

When the execution of the order requires the presence of PHPro's personnel at the client's premises, the client shall be obliged to provide all facilities necessary to execute the agreed services under favourable conditions. These facilities will include, but are not limited to: Easy access to the premises where the assignments are to be carried out; provision of a workplace and the material resources necessary to carry out the agreed services; provision of a working environment that enables PHPro to comply with its obligations, inter alia with regard to the health and safety of its employees, as also - but not exclusively - provided for in Article 20, 1°-2° of the Belgian Employment Contracts Act.
The employees and other staff of PHPro receive their instructions exclusively from PHPro, under whose supervision, management and control they will perform their duties. The client can only give them instructions in connection with his obligations regarding health and safety at work.

Article 7: Complaints

In order to be valid, any complaint or refusal in connection with an item or the provision of services to PHPro must be reported to PHPro by registered letter with acknowledgement of receipt, within seven (7) days of the delivery of the goods or services in question.

Article 8: Representation of PHPro

Intermediaries or partners of PHPro do not have the right to make commitments on behalf of PHPro. Their order confirmations or commitments must therefore be confirmed by the persons authorised to make commitments on behalf of PHPro. PHPro reserves the right to waive or suspend an order or part of an order if and as long as this confirmation has not been given.

Article 9: Liability

PHPro shall carry out the assignments entrusted to it to the best of its ability and in accordance with professional standards in the field of research and consultancy.
Client shall be solely responsible for establishing procedures that enable Client to reconstruct lost or altered files, data or programmes at all times, regardless of the cause of the loss or alteration. The Client shall keep the necessary backup copies of its computer programmes, data and files on a daily basis. In case of loss of data, PHPro shall only be liable for the data lost between the time of the most recent daily backup and the time when the proven defect in the delivered software was discovered.
PHPro shall only indemnify the Client for material damage and/or bodily injury, directly caused by demonstrable gross negligence or wilful misconduct of PHPro, in providing the services as described in the confirmation of assignment and/or any subsequent express agreement to change or modify the assignment. PHPro shall only be liable for direct damage suffered by the client with whom PHPro has entered into an agreement, to the exclusion of all other damage such as, inter alia, financial losses, loss of business, loss of profits and/or loss of income, damage caused by loss of information, etc.
The liability of PHPro shall be limited to reimbursing an amount corresponding to the part of the service that is not in conformity with the assignment, whereby the amount of compensation shall in any case be limited to the lowest amount determined on the basis of: (i) the actual proven damage; or (ii) the total of all invoices submitted to the client in connection with the specific assignment during the last 12 months; or (iii) fifty thousand euros (€50.000);
PHPro cannot be held liable for any failure in the performance of an assignment by a third party, if the latter has intervened with the express consent or at the request of the client.
PHPro has taken all reasonable measures to protect all data it stores and processes. However, unless expressly agreed otherwise, PHPro cannot be held liable for loss, theft or misuse by third parties of data transferred by the client to PHPro and stored on PHPro's premises.
The ordered products, services and consultancy services are delivered at the client's risk. PHPro is not liable for any damage that might arise during - or as a result of - the transfer of confidential or secret information to and from the client.
The client indemnifies PHPro against any claim or complaint by third parties in relation to works, documents, information or tools provided to PHPro by, on behalf of or through the client. PHPro can under no circumstances be held liable for the Client's failure to comply with legal obligations applicable to him or any other obligations imposed on him by any administrative or judicial authority or body, or any deontological rule, professional rule or relevant custom.

Article 10: Intellectual property

The goods, services and consultancy services sold, whether or not already delivered, remain the property of PHPro until they have been paid for in full by the client. The client has a non-exclusive and non-transferable right of use with regard to the results of the study, limited to internal use in the premises of the client who ordered the study, by the employees and permanent employees of the client, for those purposes for which at the time of the order confirmation and/or any express agreement made in connection with the modification/adjustment of the order. This right of use is expressly limited to these purposes and without PHPro's prior consent, the client shall not disclose, reproduce or inform third parties or companies or suppliers of the client of the research and its results. In addition, all software products developed by PHPro and sold as such are separately covered by the PHPro EULA.
All property rights remain with PHPro, including intellectual property rights (including copyrights) in all components, tangible and/or intangible, realised by PHPro itself or on behalf of PHPro by its subcontractors in the context of the client's assignments, including in relation to knowledge of study models, research methods, surveys, applied methodology, statistical techniques, software, etc., used or applied by PHPro. In a separate written agreement, PHPro may either transfer specific intellectual property rights to the services provided or grant a right of use in connection therewith, according to specific modalities (such as duration, territory, exploitation methods....). The client may therefore under no circumstances use/modify all or any part of the aforementioned components, or grant rights to third parties without the prior and express written consent of PHPro.
The client expressly authorises PHPro to reproduce and publicise its trade name, company name, trademarks and logos on its website and in company presentations, so that PHPro's activities can be promoted among - and explained to - its clients and prospects. The client may use PHPro's trade name, company name, trademarks and logos, unless expressly prohibited by PHPro.

Article 11: Privacy of Information

The client agrees that PHPro and its business units may enter and store information relating to contacts within the client's company, including their names, telephone numbers and email addresses, in all countries where PHPro operates. This information is processed and used in the context of commercial relations between PHPro and the client, including for sending information about PHPro's activities and services. The latter only applies insofar as the Client has not prohibited such forms of use. The client and his employees are entitled to request, free of charge and at any time, access to the information PHPro has stored in relation to him/her, and to request that it be corrected or deleted. The request for deletion of such information cannot be granted during the execution of the assignment with regard to the information PHPro needs for the execution of its assignment and for administration and billing purposes.
The consent to use the information for marketing purposes may be revoked at any time by means of a request to be addressed to PHPro.
The client expressly agrees that the respondents' personal data will not be passed on under any circumstances. PHPro and the client undertake to comply with the ICC/ESOMAR international codes and guidelines ( www.esomar.org/index.php/codes-guidelines.html) in this regard.
To the extent that the client transfers or makes personal information available to PHPro, he is solely responsible for this. PHPro undertakes to follow the client's instructions in this regard, but is in no way liable to the persons concerned for the storage, security and use of the information relating to them. The client guarantees that he will comply with the relevant legislation in force, including with regard to the protection and processing of personal data, and he indemnifies PHPro in this regard against any complaint or claim by persons whose information has been transferred or made available, as well as against any intervention by the relevant competent authorities.

Article 12: Confidentiality

Confidential information means any information, of whatever nature and category (oral, written, graphic, graphical, digital, ....), which is or has been exchanged between the Parties in accordance with and in relation to this Agreement.

The Parties and their employees are obliged to keep confidential all confidential information received from the other Party in relation to the performance of this Agreement. Furthermore, the Parties shall only use such confidential information in accordance with this Agreement. The parties are not allowed to disclose this confidential information to third parties without the prior and written consent of the other party.

This confidentiality obligation shall remain in force for a period of one year after the end of this Agreement, regardless of the reason why the Agreement has been terminated.

PHPro also has the right to include the Client in its reference list of clients, to publish a brief description of the assignment and to use the Client's name and brand name for advertising purposes and public relations incentives.

The following information is not considered confidential:
- any information legally received from third parties that is not bound by any obligation of confidentiality or secrecy
- any information of which a party was already aware before such information was provided to the party in accordance with the execution of this agreement
- any information which a Party has generated itself without violating the terms of this Agreement
- any information deemed to be in the public domain without the intervention or error of the Party receiving it
- any information required to be disclosed by a court order

Article 13: Non-incentive

The Parties agree not to actively solicit each other's personnel, self-employed persons, consultants or other persons directly or individually involved in the Project with a view to recruiting them, from the commencement of the performance of the Services specified in a Specific Decision until 12 months after the end date of the Project specified in a Specific Decision, unless the Parties agree otherwise in writing.
If one Party hires an employee of the other Party or uses the services of that employee and/or independent consultant, that Party shall pay an amount equal to 6 months' salary or payment of that employee/independent consultant on the date the employee/independent consultant is first employed or uses its services.

Article 14: Force majeure

"Force majeure" means any situation that makes the performance of the order impossible or so difficult that its performance would be detrimental to the force majeure delivering party, or would be completely disproportionate to the value of the concluded agreement, such as, among others, natural disasters, war, strikes, lockouts, lack of raw materials and energy, power cuts, technical failures in server systems or internet traffic, disruption of trade or business, fire, breaking and entering, water damage and explosions, and any other similar or unforeseen event.
If PHPro is prevented from fulfilling its obligations to the client due to force majeure, it shall have the right, without judicial intervention and at its discretion, either to suspend the performance of the agreement or to regard the agreement as terminated in whole or in part, without being obliged to pay any compensation for this. The Client shall also have the right to rescind the agreement without any right to compensation if the force majeure lasts longer than six (6) months, or if the Client can demonstrate that the force majeure at PHPro has caused the assignment entrusted to PHPro to become entirely obsolete. In all cases, the Client shall be obliged to pay for the services rendered by PHPro.

Article 15: (Premature) termination of the agreement

The agreement terminates upon full payment of the last invoice of PHPro, which relates to or follows the completion of the assignment, on the understanding that the provisions of the agreement shall remain in force in respect of any dispute and/or the consequences of any event, act or circumstance arising or resulting from the agreement or its performance, with the exception of what is provided in article 12 regarding the duty of confidentiality.
This agreement may be terminated immediately by either party before the expiry of its term on account of gross negligence or wilful misconduct of the other party, after giving notice to the defaulting party by registered letter, to which no response has been received for ten (10) days.
A party may terminate the agreement immediately after giving notice by registered letter to the other party, in case of force majeure in accordance with the terms of Art.2, as well as in case of apparent insolvency, application for bankruptcy or insolvency of the latter party.

Article 16: Applicable law and competent court

All issues, questions, disputes concerning the validity, interpretation, enforcement, performance and termination of this EULA shall be governed by and construed in accordance with Belgian law, to the exclusion of the Vienna Sales Convention 1984 (CISG). No other choice of law or conflict of law rules or provisions (Belgian, foreign or international) that would have the effect of making the law of another jurisdiction applicable shall be given effect.
Any dispute concerning the validity, interpretation, enforcement, execution and termination of this EULA shall be submitted exclusively to the courts of Antwerp (Belgium).