General Terms and Conditions: the present general terms and conditions for Interim Management services.

Services: the Interim Management services to be provided by the Service Provider to the Client, as mutually agreed upon. These are always governed by the general conditions and the special agreements made between service provider and client.

Service Provider: Ufinity NV, with registered office located at Veldkant 33 B, 2550 Kontich, registered in the Register of Legal Persons in Antwerp (Antwerp Division) under number 0822.881.187.

Customer: the person who commissions the service provider to provide the services.

Employees: staff members, staff members of Affiliated Companies, independent employees, subcontractors, consultants, and any other natural or legal persons directly or indirectly involved in providing the services.

Agreement: these general terms and conditions and the other special agreements related to the services made between service provider and the customer.

Force majeure: the situation in which the performance of the agreement for one of the parties is prevented in whole or in part, temporarily or otherwise, beyond the control of the party or parties. Shall be considered, inter alia (non-exhaustive), as force majeure: fire, war, terrorist attacks, unfavorable weather conditions, defectiveness of goods, equipment, software or materials of third parties, the use of which has been prescribed by the customer to service provider, government measures, strike, unavailability of employees and general transport problems.

Party(ies): service provider or (and) the customer.

Performer means the employee(s) engaged by service provider to perform the services.

Affiliated Company(s): the affiliated and associated companies within the meaning of Articles 11 and 12 of the Companies Code.

Duration and extension

2.1 The duration of agreement shall be determined by mutual agreement.

2.2 If the customer orders the service provider to look for a suitable performer for the services, this order shall be considered as an acceptance by the customer of the general terms and conditions.

2.3 The customer may request the extension of the agreement in writing to service provider no later than four (4) weeks before the end of the current term. If service provider agrees to such extension of the Agreement, it shall notify the customer in writing. Unless otherwise provided, any extension of the Agreement shall be on the same terms and duration as the original Agreement.

Termination

2.4 Without prejudice to its right to compensation, the service provider may, at its discretion, suspend the performance of the agreement, or terminate the agreement by operation of law, without notice of default, without judicial intervention and with immediate effect, by the mere sending of a letter registered in the post office:

• in case of non-payment by the customer on a single due date
• in the event that the customer has applied for a moratorium, or is in bankruptcy or cessation of payments, or his credit is shaken or manifestly insolvent
• if the customer refuses to sign, acknowledge or accept the timesheet or any other timekeeping system without justifiable reason
• in the event of the dissolution and/or liquidation of the customer’s company
• if all or part of the customer’s property is subject to executive and/or custodial attachment at the request of a creditor or in the event of other executive or custodial measures against the customer’s property
• in case of evidence or serious suspicions of fraud performed by the customer
• if the customer refuses to provide the requested information or if the customer has provided incorrect and/or false information.

2.5 With seven (7) calendar days advance notice, the service provider may at any time unilaterally and at its sole discretion terminate the agreement early.

2.6 In addition, the parties may terminate the contract if the other party commits a proven gross fault or material contractual failure and fails to remedy the same within a period of thirty (30) calendar days after being served with notice of default by registered letter by the party claiming the fault or failure. Extension of the aforesaid cure period shall not be denied on unreasonable grounds if, during the cure period of thirty (30) calendar days, the defaulting party has commenced and continues the cure in all fairness and reasonableness.

Consequences of termination

2.7 Unless the Customer terminates the Agreement due to a proven gross misconduct or material default on the part of the Service Provider, the Customer shall compensate the Service Provider for all Services and hours of work actually performed at the time of termination.

2.8 The remedies specified in Article 2.6. of these General Terms and Conditions shall apply without prejudice to Service Provider’s right to prove higher actual damages by all legal means.

2.9 If the contract is rescinded by either party, such rescission shall be deemed to take effect from the date of the postmark on the registered letter notifying the rescission.

3.1 Unless otherwise agreed between the parties, the service provider grants the customer a limited, non-exclusive and non-transferable right to use the results of the services it has performed from the moment of payment in full of all invoices, as well as all other amounts owed by the customer due to default. Customer shall use the results of the services only in the manner prescribed by service provider.

3.2 The risks associated with the services provided shall pass to the customer at the time of delivery.

4.1 Confidential information means all information, of whatever form (oral, written, graphic, electronic, etc.), exchanged between the parties within the framework of this agreement.

4.2 The parties and their employees must keep confidential the confidential information received from the other party in execution of this agreement. In addition, the parties may only use the confidential information in the context of this Agreement. The parties may not disclose confidential information to third parties without the written consent of the other party. Information shall in any case be considered confidential if it is designated as such by either party.

4.3 The confidentiality obligation will continue for a period of one (1) year after the end of this Agreement, regardless of the cause of termination of the Agreement.

4.4 Not considered confidential information:

• the information legally obtained from a third party who is not bound by any confidentiality or non-disclosure obligation
• the information that a Party already knew before it was transmitted to it under this Agreement
• the information self-developed by a Party without violation of this Agreement
• information that has fallen into the public domain without the intervention or fault of the party who received it
• the information required to be made public by a judicial or administrative decision.

4.5 Service Provider may also include the client in its client list, publish a brief description of the assignment and use the client’s name and brand for publicity purposes and public relations activities.

5.1 Service Provider undertakes to perform the Services to the best of its ability on behalf of the Customer and will take into account the instructions and guidelines received from the Customer.

5.2 For the execution of this agreement, service provider shall use one or more executors, which shall be determined by mutual agreement. Service provider reserves the right to propose another executor to the customer who will take over the execution of the order. The customer shall approve the new executor in writing, but shall not unreasonably withhold its approval.

5.3 If the performer does not (or no longer) meet the set requirements, brings the name of the customer into disrepute or does not (no longer) reasonably perform the services in accordance with this agreement, the customer has the right to ask service provider to replace the performer. This does not release the customer from its obligation to reimburse the services already performed by the performer.

5.4 If service provider agrees to replace the performer, it undertakes to make a replacement available to the customer as soon as reasonably possible. If service provider cannot provide a qualified substitute within a period of two (2) weeks, the customer shall be entitled to terminate the part of the agreement relating to the executor to be replaced.

5.5 If, during the term of the agreement, the content specifications for the performance of the agreement change, the customer shall reimburse service provider for further training of the performer. If the customer itself provides training to the performer, the costs for this training shall be borne by the customer unless the parties have agreed otherwise.

5.6 Service Provider shall communicate any planned interruptions in the performance of the services (such as short-term illness, leave of absence of the performer, etc.) – as far as possible – in a timely manner to the Customer.

5.7 The Services will be performed at the Customer’s premises, unless otherwise agreed. The working space and facilities shall comply with all legal requirements. The customer indemnifies the service provider for claims of third parties, including the employees of the service provider, who in connection with the execution of the agreement suffer damage which is the result of acts or omissions of the customer or of unsafe situations in his organization. The customer will make the house and security rules applicable within his organization known to the service provider(s) before the start of the services.

5.8 The customer shall make available to service provider any information, technical or general documentation or other intelligence necessary for the services.

5.9 In general, the customer shall always bear full final responsibility for ongoing projects of which the services of service provider may be a part. Service provider is not responsible for incorrect, missing or conflicting instructions from the customer.

6.1 The customer undertakes to pay a fee equal to the number of days (hours) worked multiplied by the rates agreed upon.

6.2 Fees are exclusive of VAT and any other taxes imposed or to be imposed by the government. Unless otherwise provided, these fees are exclusive of travel times and/or costs. Travel between the service provider’s registered office and the agreed place of employment shall be charged on the basis of a rate of EUR 0.35 per kilometer traveled.

6.3 Rates may be adjusted annually on January 1 by the service provider based on the following formula:

New price = base price * (0.2 + 0.8 * (new index start index))
For which the following definitions apply:

• Base price: price at the start of the agreement;
• Commencement Index: the “reference wage cost national average” index published by Agoria for the month preceding the signing of the Agreement;
• New index: the “reference wage cost national average” index published by Agoria for the month preceding the date of indexation.

6.4 Service Provider shall take all reasonable steps to perform the Services in accordance with Customer’s work schedule. Unless otherwise agreed by the parties, a work schedule of 40 hours per week is assumed. If there are more than 40 hours, or performance during evening or morning hours and/or weekends, the parties and the performer(s) must explicitly agree and the following increases will be applied (not cumulative):

• performance > 40 hours/week: + 50%
• performance > 8 hours/day: + 50%
• performance between 8 p.m. and 7 a.m.: + 100%
• performance on Saturday, Sunday or legal holiday: + 150%

6.5 Unless otherwise agreed in writing between the parties, the performer shall have his work performance signed off by the client for approval, by means of timesheets or any other time recording system agreed upon between the parties.

6.6 Service Provider shall invoice Customer each month for the above fee. All invoices shall be payable in cash. Failure to protest an invoice in writing within eight (8) business days from its mailing shall constitute irrevocable acceptance of the invoice and the services specified therein.

6.7 The expiry of the payment term puts the customer in default by operation of law and without prior warning. Upon expiry of the payment term, the customer shall owe conventional interest equal to the interest rate stipulated in Article 5 of the Late Payment Act (Law 02/08/2002, BS 07/08/2002), plus 3%. This interest is calculated from the due date until the day of full payment.

6.8 In case of late payment of an invoice:

• the service provider has the right to increase the invoice amount by 15% as compensation
• all costs, the extrajudicial collection of the invoice, as well as the costs of legal proceedings and execution shall be borne by the customer
• all unexpired claims against the customer become immediately due, payable and payable
• the service provider has the right to suspend all its services to the customer without prior notice

6.9 The Customer is not entitled to set off or suspend any payment.

6.10 If, in the opinion of service provider, the customer’s creditworthiness gives rise to it, service provider may, even after the conclusion of the agreement, require the customer to provide security requested by service provider for the payment of the services still to be provided, and service provider may suspend the performance thereof as long as the security has not been provided.

7.1 Service provider performs this agreement in all freedom and independence. Neither a hierarchical relationship exists between service provider and the customer, nor between the customer and the performer(s) engaged by service provider. Under no circumstances does service provider transfer any employer authority over its employees to the customer, except to the extent permitted by applicable law as set forth below.

7.2 The parties acknowledge and accept that they are familiar with the Law of July 24, 1987 on temporary work, temporary employment and the posting of workers for the benefit of users, the amendments made by the Program Law of December 27, 2012 and the amendments that may be made from time to time and published in the Belgian Official Gazette. The parties undertake to comply with the provisions of these laws.

7.3 Accordingly, the customer shall not give any instructions to the service provider’s employees (and/or employees of the subcontractors used by service provider) other than those specified in this agreement with respect to standards of conduct and safety, time management, the applicable policies and procedures of the customer mentioned in this agreement or the work performed by such employees.

7.4 Customer is not authorized to make decisions regarding:

• the recruitment process;
• the compensation package (definition of salaries and emoluments, reimbursement of expenses, etc)
• disciplinary matters
• training and policies related to training (excluding those aspects necessary for the performance of services)
• dismissal and related policies
• Management of presences and absences from work (vacation, sick leave and other absences)
• employments and aspects of organization involving employees of the service provider (and/or employees of subcontractors used by service provider)

7.5 Any instructions given by the customer to service provider’s employees (and/or employees of the subcontractors used by service provider) regarding the work to be performed shall be strictly limited to the operational and technical aspects of the provision of the services, shall in no case amount to the authority of an employer, and shall relate solely to the following:

• planning of services to be provided
• time frame in which services are to be provided, if applicable
• Customer’s processes and procedures as agreed by the parties and to be observed in the provision of the services (for example, with respect to security or access rules)
• access to customer sites and facilities for the purpose of providing the services
• use of Customer’s equipment, infrastructure, tools or facilities for the purpose of providing the Services

If in doubt, the parties should discuss the applicability of a customer’s instruction.

7.6 The specific terms and conditions may contain more specific details on the instructions that may be given by the customer. This list may be modified at any time during the term of the agreement.

7.7 The client must comply with the obligations imposed on the “user of the services” by the said Program Law.

7.8 The customer shall indemnify the service provider for all claims, damages and liabilities resulting from non-compliance with the provisions of Article 7 of these General Terms and Conditions.

8.1 The liability that service provider may incur arises from an obligation of effort that will have to be soundly demonstrated by the customer.

8.2 To the maximum extent permitted by applicable law, the total liability of service provider for an attributable failure in the performance of the agreement shall be limited to the compensation of the direct damage up to a maximum of the fee due by the customer for the specific services that caused the damage (excluding VAT). If the services were to run over several years, the service provider may be liable for the compensation of direct damage up to a maximum of the value of the amounts invoiced in performance of this agreement for the specific services (excluding VAT) during a period of twelve (12) months preceding the day on which the harmful event occurred. In no event, however, shall the total liability for all direct damages during the entire term of the agreement exceed the amount paid by the customer for the specific services (excluding VAT).

For cases of damage attributable in part to the client and/or a third party, the service provider shall be liable to the client for and at most liable to pay compensation, within the limits set forth above, for the share caused by his proven fault, to the exclusion of any obligation in solidum with the other debtors. All this regardless of whether the claim is brought on a contractual or non-contractual basis.

8.3 The customer shall notify service provider in writing of any event that may entail its liability or any prejudice suffered by the customer, within the shortest possible time and, at the latest, within fifteen (15) calendar days counting from the occurrence of such event or prejudice, or, at least, counting from the time when the customer became aware of it or could reasonably have become aware of it. All this in order to enable service provider to determine the origin and causes of the damage within useful time. Failing this, service provider reserves the right to refuse any compensation and service provider cannot be held liable.

8.4 Under no circumstances will service provider be liable for (i) indirect, indirect, incidental or consequential damages, including, without being exhaustive, financial or commercial losses, loss of profits, increase in overhead costs, missed savings, reduced goodwill, damages due to business interruption, damages due to claims of customer’s customers, disruption of planning, loss of expected profits, loss of capital, loss of customers, missed opportunities, loss of benefits, (ii) damages caused by a fault or negligence of the customer, (iii) the compensation of all direct and indirect damages caused by the use of the result of the services, (iv) the compensation of all direct and indirect damages caused in whole or in part by services or products supplied or made by third parties, or by any other element brought into the business of the customer after the conclusion of the agreement and (v) all claims by third parties against the customer.

8.5 The limitations of liability set forth in these General Terms and Conditions shall not apply with respect to damages caused by an intentional and/or fraudulent misconduct by Service Provider.

8.6 If the developments delivered are used for further development or commercialization, the customer shall indemnify the service provider against any claim for damages by third parties, even if it should be established that they originate in the services delivered by the service provider.

8.7 These limitations of liability remain applicable in the event service provider was informed by the customer of the existence of a real risk of damage. The parties recognize that this constitutes a reasonable allocation of risk.

8.8 The provisions of this article as well as all other limitations and exclusions of liability mentioned in these general terms and conditions also apply in favor of the employees of service provider and its affiliated companies.

9.1 Each party shall, at all times, comply with its respective obligations under applicable personal data processing laws in connection with all personal data processed under this Agreement. The Customer shall remain solely responsible for determining the purposes for which the Service Provider processes personal data under the Agreement. For the avoidance of doubt, the parties acknowledge that the customer is acting as the data controller and the service provider as the processor of the personal data to be stored, used or otherwise processed under this agreement, as those terms are defined in applicable personal data processing laws.

9.2 The customer declares that it has obtained all necessary approvals for the use and processing of the personal data transmitted to the service provider under the agreement, and the customer also guarantees that the content, use and/or processing of the personal data is not unlawful and does not violate the rights of third parties.

10.1 Neither party shall be bound to fulfill any obligation if prevented from doing so due to force majeure.

10.2 If a force majeure situation lasts longer than sixty (60) calendar days, either party shall have the right to terminate the Agreement in writing. What has already been performed under the Agreement shall in that case be settled proportionately without the parties owing each other anything else.

11.1 The customer agrees not to actively approach service provider’s employees, directly or indirectly involved in the provision of the services, for the purpose of engaging them, and this from the beginning of performance of the services until twelve (12) months after the end date of the services, except if both parties agree otherwise in writing.

11.2 If the customer contracts, hires or uses the services of an employee of the service provider, as an employee and/or on a self-employed basis and/or through a company, the customer shall pay to the service provider an amount equivalent to 180 times the agreed daily fee. Such sum shall be payable on the date the employee was first engaged or his services were used.

11.3 The customer furthermore agrees to approach employees, who have been proposed by the service provider to the customer as potential performers for the services and who have not been retained by the customer, with a view to engaging them, for another or the same vacancy and this from the moment of sending to the customer the curriculum vitae of the employee concerned, for a period of six (6) months, except if both parties agree otherwise in writing, under penalty of the payment by the customer to the service provider of a lump sum compensation equal to the highest of the following amounts: EUR 12,500.00 or an amount equivalent to the daily rate of such employee multiplied by the scheduled period of services.

12.1 The present agreement is subject to Belgian law.

12.2 In the event of disputes regarding the performance and/or interpretation of the present agreement that cannot be settled amicably, the Courts of Antwerp (Antwerp Division) shall have exclusive jurisdiction. Any claim of the customer relating to the services provided shall lapse six (6) months after the day on which the customer became aware or could reasonably have become aware of the harmful fact that gave rise to that claim,

12.3 Neither this Agreement, nor any rights or obligations arising therefrom may be assigned in whole or in part without the express and written consent of both parties. Notwithstanding the foregoing, Service Provider shall at all times be entitled to assign this Agreement, or any rights or obligations arising therefrom, in whole or in part, to any Affiliate of Service Provider without the express and written consent of Customer.

12.4 Service provider may use subcontractors for the performance of the agreement without prior written agreement of the customer. The use of a subcontractor will be under the responsibility of service provider and will not entail any additional costs for the customer.

12.5 The possible nullity of one of the provisions of this Agreement, or part of a provision, shall in no way affect the validity of the rest of the provision and the other clauses. The parties will make every effort, by mutual agreement, to replace the void clause with a valid clause with the same or substantially the same economic impact as the void clause.

12.6 A party shall not be deemed to have waived any right or claim under this Agreement or concerning any default of the other party unless such waiver is expressly made and communicated in writing. If, in application of the preceding paragraph, a party waives any right or claim under this Agreement which has its origin in a default or other breach of contract of the other party, such waiver shall never be construed as a waiver of any other right under this Agreement or concerning a default or other breach of contract of any other party, even if the two cases are substantially similar.

12.7 Except as otherwise provided, all remedies provided in the Agreement shall be available to the parties cumulatively and in addition to (and not in lieu of) other remedies.

12.8 These general terms and conditions, together with the special agreements made between the parties, contain the complete representation of the rights and obligations of the parties, and supersede all previous agreements and proposals, whether oral or written. Deviations from and additions to this agreement shall be valid only if agreed in writing between the parties. The applicability of purchasing or other conditions of the customer is expressly rejected, even if these conditions would stipulate otherwise.

12.9 All notices, requests and other communications under this Agreement (excluding day-to-day operational communications) shall be in writing by registered mail with acknowledgement of receipt or by any other means of communication customary and agreed upon between the parties.

12.10 All provisions of the Agreement expressly designated as surviving termination (including rescission) or expiration of the Agreement, as well as all provisions of the Agreement which purport to be enforced or complied with after termination or expiration of the Agreement, shall survive termination or expiration and remain in full force and effect. In particular, but not limitatively, all provisions relating to liability, confidentiality and non-solicitation shall survive termination of the Agreement in any manner.

12.11 Irrespective of the nature and/or value of the legal act to be proved, the service provider may always prove it by means of the following additional means of proof: copy or reproductions in any form (carbon copy, photocopy, microfilm, scan, etc.), via information carrier, fax, telex and e-mail. These means of evidence have the same probative value as a private document drawn up in accordance with the provisions of the Civil Code. In case a signed copy of the agreement is communicated via e-mail with a “.pdf” or “jpeg” data file or via any other exact copy, the signature contained therein will create a valid and binding commitment on behalf of the signatory (or in whose name and on whose behalf the signature was placed) with the same value, force and effect as if it were original.

12.12 The titles and subdivisions in this agreement are used for indicative purposes only and in no way affect the content or scope of the provisions and of the rights and obligations arising therefrom.