the “Background“ shall mean any system, program, technology, trade secret, know-how, evaluation, plan, method, software (object code as well as source code), test, and other generic methodology and information, whether protected by patent or patent application or not, and whereof the Party owns intellectual property rights or has rights of use on such, before the start of the Project as well as for intellectual property rights that are developed or acquired by such Party outside of the Project after the start of the Project, and which are necessary for the execution of the Project;
Comate: Comate BV, with registered office at Karel Van Lotharingenstraat 4, box 301, 3000 Leuven (Belgium) and registered with the Crossroad Database for Enterprises under number 0827.793.149 (RLE Leuven);
the “Customer”: any customer requesting Services from Comate;
the “General Terms and Conditions”: the general terms and conditions of Comate;
the “Party”: Comate and the Customer individually referred to;the “Project”: the project as described in the Quotation;
the “Product”: the prototype or product as ordered by the Customer;
the “Quotation”: the quotation from Comate to the Customer in relation to the Services to be provided; and
the “Services”: the services provided by Comate to the Customer to execute the Project and more specifically the analysis, development, design, engineering and assembly of the Product, it being understood that the Services may from time to time include production or manufacturing of the Product.
Acceptance of the General Terms and Conditions
The General Terms and Conditions in force at the time of Quotation shall apply to all deliveries, Services, agreements and invoices established by Comate, unless otherwise expressly agreed in writing and signed by both parties. The Customer has previously been informed of these General Terms and Conditions and has accepted these explicitly. The Customer’s general terms and conditions are not applicable and are therefore expressly excluded.
Comate considers all orders final and binding upon Customer’s signing of the Quotation or upon the Customer’s tacit acceptance. Any change to the Quotation shall need prior written acceptance of Comate.
If the Customer wants Comate to deliver any services which are not described in the Quotation, these services will be invoiced against hourly rates of Comate and at the rates applicable at that time for the type of services requested. Hourly rates will be automatically adapted to the cost of living (“indexcijfer der consumptieprijzen”).
Agreements or quotations made by a third party, are not valid unless confirmed in writing by Comate.
The update, upgrade, support and maintenance regarding any software or system in or related to the Product, is not the subject of the Quotation for the Project. Any agreements regarding such update, upgrade, support and/or maintenance will be agreed upon before the finalization of the Industrialize Stage and confirmed in a separate Service Level Agreement.
Comate will provide the Services in accordance with the generally accepted professional engineering practices using reasonable care and skill consistent with that ordinarily exercised by members of the profession under similar conditions, using best effort and as an obligation of means. However, due to the nature of the Services being provided, Comate cannot fully guarantee the success of the Project.
Except in case of wilful misconduct or gross fault or where mandatory legal provisions determine otherwise, Comate’s liability, in any cause of action, shall be limited to indemnifying any direct, foreseeable loss incurred by the Customer, and shall not exceed the lowest of (i) the amount of the insurance coverage for the claim or (ii) the price of the Project giving rise to such a claim against Comate. The parties specifically agree that the damages recoverable against Comate shall not include, under any circumstances except in case of wilful misconduct or gross fault, (i) any indirect and/or consequential damage, (ii) loss or expense such as inter alia development delays, (iii) loss of profits or revenue, (iv) lost business opportunities, (v) claims of clients of the Customer or other third parties for damages or penalties, (vi) costs regarding to production tools as ie moulds, due to a design fault, or (vii) damages or losses related to the Customer’s professional activities (including but not limited to damages or losses resulting from the testing, lease or other use of the Product or Prototypes by the Customer)
Comate shall not be liable for any damages and the Customer shall indemnify Comate from any claims or damages caused or allegedly caused by the Product intended to be sold an/or offered for consumption and produced prior to the signing of the acceptance certificate as described in section 5.
Warranty – tests - acceptance
If, and only if, the Services include the production or manufacturing of the Product by Comate, Comate will warrant that the Products at the time of delivery will be conform to the specifications as described in the technical file transferred to the Customer.
This warranty shall be valid for six (6) months after delivery of the Product and will not apply if any of the following has occurred: (i) improper handling, transportation, modification or repair of the Product by the Customer, (ii) accident, abuse or improper use of the Product by the Customer, (iii) improper installation or maintenance of the Product by the Customer, (iv) force majeure, (v) negligence, lack of supervision or of maintenance on the part of the Customer, (vi) in case the deliverable is a prototype and not the final product and (vii) normal wear and tear. This warranty shall not apply in the event of a defect caused either by materials or accessories supplied by or services rendered by the Customer; by a design imposed by the Customer, or by an intervention by a person or entity which is not authorised or qualified for carrying out such intervention. Furthermore, the warranty will not apply to prototypes, if such prototypes are used or installed without Comate’s supervision. Except for the provided warranty, Comate disclaims any and all representations and warranties of any kind, express or implied, including the implied warranties of merchantability and fitness for a particular purpose, non-infringement of intellectual property rights of third parties, all design warranties and all performance warranties and the above shall exclusively describe Comate’s obligations with regards to the quality of the Products delivered.
The Customer and Comate will together draw up a test protocol describing the acceptance tests and the acceptance criteria. The acceptance tests will be carried out by the Customer or Comate (billable) and the results will be described in a report consultable by the Customer. The signing of the acceptance certificate by the Customer is considered as an acceptance of the Product and Services, being understood that the Customer shall not be able to refuse to sign the acceptance certificate if all acceptance criteria have been met. All costs related to the aforementioned acceptance procedure will be borne by the Customer. The Industrialize Stage can only start if the signed acceptance certificate is available.
The Customer may choose to have the Product tested by third parties or commercialised towards end users. Comate will not have a direct link with these third parties. The Customer will hold harmless Comate for any claims initiated by third parties, unless the Customer can prove that the claim is based on an inexcusable breach of the warranty (as described in this section) by Comate.
The official certification of the electronics & software and the ‘life cycle, durability, IP, and other final tests’ for the mechanics needs to be performed by an independent and official test lab before putting into service and before any interaction of the product or prototype with users happens. These tests are the responsibility of the Customer. Comate is not liable for damages or harm due to a product or machine put into service without official inspection & test report.
In relation to the warranty, the choice of remedy and place of remedy will be decided at Comate’s sole discretion and the remedy will, generally, be limited to the repair of the defective parts of the Product.
Unless explicitly stipulated otherwise, Comate will not provide any CE-labels for the Product. Furthermore, Comate will never have to provide a CE-label for prototypes, as these are unfinished articles. It is understood that the Product will always be commercialised or brought to market by the Customer, not by Comate.
Delivery times and inspection
All delivery times stated by Comate are given without commitment and are purely indicative. They shall deem to begin once all execution details are known to Comate. Comate shall never be held liable for failing to meet the delivery time or for direct or indirect costs, consequential costs, damages or losses, of any kind, with regard to itself, its suppliers or any third party. In case of late delivery of the Services due to force majeure, Comate reserves the right to suspend the Project, after notification thereof to the Customer.
In case the Services include the production or manufacturing of the Product, the delivery of the Product shall take effect when the Product is placed at the disposal of the Customer at the registered office of Comate and shall therefore be regarded as being accepted. The Product is therefore sold EXW Leuven. Prior to the delivery of the Product or any other Services, the Customer shall have the right during regular working hours and upon reasonable notice to Comate of at least seven (7) calendar days, to inspect and observe the Product at the registered office of Comate, provided that the Customer inspecting such Product follows all safety and access rules regarding access to Comate’s facility. If such inspection is waived expressly or tacitly by the Customer, the Product shall be deemed to have been delivered in good order.
Invoices are payable at the registered office of Comate, on the due date as mentioned on the invoice of Comate and in accordance with the accepted Quotation, in the agreed upon currency. All invoices not paid, in full or in part, on the due date, shall legally and without prior notice, result in a delay interest on the outstanding invoice amount at the statutory interest rate from the due date in accordance with the Law of August 2, 2002 on combating late payment in commercial transactions as amended by the Law of November 22, 2013, increased with four (4) %. Any late payment by the Customer authorizes Comate to charge an administration fee of ten (10)% of the invoice amount with a minimum of one hundred and fifty (150) euro. This administration fee remains payable upon (late) payment of the principal invoice sum. Late payment of an invoice shall immediately entitle Comate to suspend the performance of the Services until full payment of the outstanding payable invoices. The Customer shall be bound to assume all costs deriving from enforcing payment through courts, including statement of fees issued by attorneys-at-law.
Complaints shall be communicated in writing as soon as possible after observation and ultimately within fifteen (15) calendar days after the date of delivery of the Products or the rendering of the Services. Any complaints concerning the delivery or rendered Services shall not be used as a pretext for suspending or delaying the payment of invoices or for cancelling an order. The absence of a written objection to an invoice within fifteen (15) calendar days after its invoice date entails irrevocable acceptance of the invoice and the amounts, Products and Services mentioned thereon. The provisions of this section shall be without prejudice to the provisions regarding acceptance as stated under section 5.
Early termination of the Project
Each Party can terminate the Project at any time without cause subject to a prior notice of thirty (30) days by registered letter.
Each Party can immediately and without judicial intervention terminate the Project through a notice by registered letter for reason of fraud, wilful misconduct, gross negligence or a material breach of the agreement by the other Party, such as but not limited to a breach of sections 10, 12 and/or 13. If the immediate termination by Comate is due to the Customer, the Customer shall pay an indemnity equal to thirty (30)% of the remaining balance. In each case of early termination, the Customer shall pay the price for the Services delivered by Comate until the date of termination.
Intellectual Property - ownership
The intellectual property rights on a Party’s Background will remain that Party’s sole property. The intellectual property rights related to the Product and/or the Services made or conceived by Comate in its execution of the Project specific for the Product and/or the Project - including but not limited to illustrations, descriptions and 2D and 3D designs - (the “Specific IP”), will, to the extent possible under law, become the sole property of the Customer upon full payment to Comate of the agreed upon price. The software, data and results made or conceived by Comate in its execution of the Project related to Comate’s business, such as – but not limited to – improvements to its own technology and generic solutions developed by Comate in the Project, as well as the intellectual property related thereto (the “Generic IP”), will remain Comate’s sole property. Comate grants, for the duration of the protection of the intellectual property rights contained in the Generic IP, a worldwide, royalty free, non-transferrable license to the Customer to integrate the Generic IP “as is” in its Products subject of the Project insofar as necessary for and for the sole purpose of the commercialization of those Products, under the obligation of confidentiality. The Parties can decide to describe the Background, the Specific IP and the Generic IP in order to try to avoid any discussions.
Intellectual Property - indemnification
The Customer will indemnify, defend and hold Comate harmless from any claim that the Product or Services, violate any patent or proprietary rights of a third party. It is the Customer’s responsibility to pursue patent, copyright or other proprietary rights protection. Where the Customer asks Comate to follow any designs or instructions, the Customer hereby indemnifies Comate against all damages, penalties, costs and expenses arising from any infringement of a patent, trademark, registered design, copyright or common law right with respect to those designs or instructions. The Customer warrants that any designs or instructions given to Comate will not cause Comate to infringe any patent, registered design, trademark, copyright or common law right.
The parties acknowledge that in the course of performing their obligations under the Project, they may have access to and will be entrusted with Confidential Information (as defined hereinafter), the disclosure of any of which would be detrimental to the other party’s best interests. Confidential Information for the purpose of this section means any and all information supplied/made accessible by one party -from time to time- to the other under the Project, including but not limited to product information, information in relation to clients or potential clients, pricing information, marketing techniques and technical information and will also include the existence and the contents of the Project. The Parties agree that information disclosed pursuant to the Project which would otherwise be Confidential Information shall not be deemed Confidential Information to the extent that it can be proven that said information:
is or becomes part of the public domain without violation of this agreement between the Parties;
is known and on record at the receiving Party prior to disclosure by the disclosing Party;
is lawfully obtained by the receiving Party from a third party who is not bound by similar confidentiality obligations; or
is developed by the receiving Party completely independently of any such disclosure by the disclosing Party.
Neither during nor one (1) year after the Project, either Party is allowed to:
reproduce, distribute or disclose directly or indirectly any Confidential Information to any third party; and
use any Confidential Information and documentation acquired while performing the Services for any purpose other than performing the Services.
Unless otherwise expressly stipulated, Comate has the right to use images of the design of the Product for its own promotion and publicity and to use the name of the Customer on Comate’s website and publication material.
The Customer and its related companies (parents, affiliates, subsidiaries, divisions, predecessors, successors, …) commit not to engage in any form of cooperation, direct or indirect, with an employee, consultant or director of Comate, for the duration of the Project and for a period of twelve (12) months after the Project is finished, cancelled or in another way terminated. If the Customer fails to comply with article 13 of these General Terms and Conditions, he agrees to compensate Comate with an amount corresponding with seventy-five (75) times the daily rate of the relevant employee, consultant or director. This will however not nullify the right of Comate to claim additional damage.
The nullity or invalidity of a specific section of the General Terms and Conditions does not affect the validity of the others sections of the General Terms and Conditions. The Parties will negotiate in good faith about an adjustment of the concerned section in order to maintain the same balance between the rights and obligations of the Parties as when the invalid section would have been valid.
Applicable law and jurisdiction
These General Terms and Conditions are subject to Belgian law. A dispute of any kind can only be brought before the exclusive jurisdiction of the competent courts of Leuven.