These terms were last modified on 19 March 2022.

GENERAL TERMS AND CONDITIONS 

 

1. Applicability

 

These general terms and conditions, unless expressly agreed otherwise in writing, apply to and form part of all offers and quotations of, and contracts with (a) NBX BV, a limited company under Belgian law, whose registered office is at Sint Aldegoniskaai 36, 2000 Antwerp, Belgium, Antwerp Register of Legal Entities, Antwerp division, company number BE 0578.917.180, and/or (b) any of its related or affiliate companies ((a) en (b) hereinafter jointly also referred to as “NBX”) to any of its of their products or services, to the exclusion of all alternative and/or conflicting and/or additional terms and conditions of any other party. In case of conflict between these general terms and conditions and a separate contract between parties, the separate contract will prevail.’’ 

 

 

2. Offers and quotations - origination of contract - prices

 

All offers and quotations are without obligation and not binding on NBX. The contract between parties only comes into being, through and by written confirmation by the other party and, following, by NBX. 

The prices quoted are net of VAT and other taxes in all cases. These prices shall be adjusted on 1 January every year in line with fluctuations in the Belgian consumer price index, with the initial index being the index of the penultimate December preceding indexation and the new index being the index of the most recent December preceding indexation. Obvious calculation errors in the quoted prices may be corrected by NBX at any time. 

 

 

3. Delivery

 

Unless otherwise agreed in writing between the parties, and taking into account the specific services of NBX and the economic market in which it operates, any time of delivery is purely indicative and not binding on NBX. Unless expressly agreed otherwise in writing, the exceeding of such deadlines may not lead to the cancellation of the order or the dissolving of the contract by the other party, or to the refusal of the goods or services ordered by the other party and shall under no circumstances give the right to any claim compensation or to delay or refuse payment. NBX shall inform the other party should any delay in delivery take place and NBX will try to take the appropriate corrective action. 

 

 

4. Object 

 

NBX can provide several products or services within her scope of activities, and shall make these available with the agreed functionalities, specifications and availability at a distance, but only to the extent that these are explicitly described in the offer and documents sent separately with the offer or agreement. 

 

 

5. Provision of goods

 

If the contract between parties concerns the provision of goods, all goods will remain property of NBX until full payment of the price as agreed between parties. If the other party already has possession of the goods, without the property has already been transferred the other party, the other party shall bear all risks and liabilities for damage or loss. The other party is prohibited, as long as the right of ownership has not been transferred, from changing or disposing of the goods by giving them as collateral or securities, or allowing other similar rights or guarantees over them. 

 

 

6. Provision of services

 

NBX will use best efforts to ensure skilled and experienced manpower and resources. NBX has the right to subcontract all or part of the contracted work and/or to use the services of partners, as long as they meet the standards as NBX requires of its internal staff. 

NBX performs its assignments in complete independence and at no time works in a subordinate capacity. It is the other party only permitted to give instructions that are strictly necessary to let NBX carry out the provision of services in accordance with the business processes of the other party. Nothing in the agreement between parties shall give the other party any power to exercise employer’s authority over the staff of NBX, except the ‘instruction right’ as foreseen in Belgian law (law of 24/07/1987).

 

 

7. Additional work

 

If a fixed price has been agreed with the other party, it shall only relate to the activities and services as specified in the accepted and confirmed quotation or in the concluded contract. The other party shall be charged for any activities and services provided in addition or modification of the initial agreement, on the basis of retrospective calculation at the usual rates. E.g.: 

  • the extension or modification, on demand off, and after it has been approved by the other party; 

  • requirements, requests, conditions or expectations of the other party that were not made known to NBX in a clear, entirely clear or sufficiently clear fashion at the time of entering into the contract; 

  • defects and/or shortcomings in products or services of third parties, subcontractors and/or partners which could not reasonably have been foreseen by NBX or over which NBX can exert little or no influence; 

  • lack of cooperation by the other party in the implementation of the contract. 

Additions and/or modifications requested in the course of a project may lead to the delivery and performance deadline being extended. 

 

 

8. Intellectual rights

 

All copyright and other intellectual property rights or other rights to or relating to the delivered products and services, as well as designs, software, documentation and all other elements that are developed and/or used in preparation or execution of the contract between NBX and the other party, or arising therefrom, shall reside exclusively with NBX and/or its suppliers and licensors; the delivery of products and/or services to the other party thus shall not lead to any transfer of copyright or other intellectual property rights. 

The other party shall only obtain a non-exclusive, personal and non-transferable license to use the products and results of the services provided by NBX, for the agreed purposes and in accordance with the provisions of the accepted and confirmed agreement concluded between the other party and NBX. The other party is not entitled to publicly disclose, reproduce or make available to a third party the products and results of the services, in any way, in whole or in part.

 

 

9. Unauthorized use

 

The other party may not make unauthorized use of the delivered goods or services or offered facilities, e.g. using or permitting the use, directly or indirectly, of the delivered goods or services or offered facilities, for the perpetration of a breach or infringement of any contract or any legislative provision, whether of criminal law or otherwise, in the broadest sense of the term, or causing damage or nuisance to NBX. The other party shall fully indemnify NBX against any and all claims brought by third parties relating to the unauthorized use. 

 

 

10. Complaints

 

All complaints concerning visible defects, deviations from the order or delivered services must, on pain of invalidity, be made immediately on delivery of the product in question or immediately after performance of the service concerned. All complaints concerning hidden defects must, on pain of invalidity, be made within five calendar days after the other party is or ought to have become aware of them. All complaints concerning invoicing must, on pain of invalidity, be made within five calendar days of the invoice date. All complaints of any nature whatever must, on pain of inadmissibility, in any case be made by registered letter with substantiation of the grounds thereof. 

The conduct by NBX of negotiations with the other party regarding a complaint or claim for compensation shall not imply any acknowledgement as to its liability or the admissibility or merits of the complaint. 

The other party shall be obliged to bring any judicial action (claim before the competent court) in relation to liability, defects or invoicing within a period of 6 months from the discovery of the fault or from the time the complaint has been made. The limitation of the procedure period is justified from the point of view of legal certainty and the intensity and scope of the service that NBX provides, and its impact on a large share of the commercial market. 

 

11. Liability for faults and/or defects, attributable to NBX

 

Should any faults and/or defects, attributable to NBX, occur, NBX has a right to choose either to rectify or repair the service, or to repair or resupply the goods, at its own discretion. At risk of voiding any warranty, the other party has no right, unless otherwise agreed in writing, to arrange for third parties to repair any damage relating to goods and/or services. NBX will accept no responsibility or liability whatsoever in this regard. 

NBX may not be held liable in any way for damage caused by the other party, its employees, end users, subcontractors, partners and/or third parties, any indirect or consequential damage, including – without this list being restrictive – commercial or financial loss, loss of data, loss of reputation, loss of profits or revenue, loss of customers and losses resulting from legal action taken by third parties against the other party. Thus, the liability of NBX can be invoked only for its own faults or defects.

The total liability of NBX shall at all times be limited to the liability imposed in the given factual circumstances by the law, and in any case limited to the lower of the following two amounts: (1) the invoice amount concerned, or (2) the amount of the payment received on the insurance policies arranged by NBX. This limitation of liability implies a reasonable allocation of risk, which is expressly accepted by the parties, even if the other party has alerted NBX to certain risks.

The other party shall be obliged to bring any judicial action (claim before the competent court) in relation to liability, defects or invoicing within a period of 6 months from the discovery of the fault or from the time the complaint has been made. The limitation of the procedure period is justified from the point of view of legal certainty and the intensity and scope of the service that NBX provides, and its impact on a large share of the commercial market.

 

 

12. Payment

 

All payments must be made in euros. Any costs associated with payments shall always be borne by the other party. Unless expressly agreed otherwise in writing, all invoices of NBX shall be payable (i.e. the account of NBX should be credited) within 30 calendar days after the invoice date. Timely payment by the other party is an essential element for NBX in the execution of the agreement.  

Claims for compensation and/or complaints from the other party about defects, shortcomings and/or invoicing, and any delays in the execution of the contract, may not give rise to the suspension of payment by the other party. The other party acknowledges the fact that the impossibility of compensation or suspension is justified from the point of view of the high commercial value and the continuity and scope of the services and/or goods to be provided by NBX.

Any payment shall be first set against collection costs, compensation and costs, and only then against the principal. Moreover, payments shall always be allocated first to the oldest outstanding invoice, together with associated sums, even if the other party indicates that the payment relates to a later invoice. 

Any sum which has not been paid by the due date, shall automatically and without prior notice be increased by interest of 10% per annum, as well as by fixed and unchangeable compensation equal to 10% of the amount unpaid on the due date, but without prejudice to the right of NBX to a greater amount in compensation for losses actually incurred.

As a result of the non-payment, late payment or incomplete payment of a single invoice, for whatever reason, the outstanding balance of all other invoices, including those that have not yet fallen due, shall be immediately payable and due; moreover, any benefits of deferral of payment and/or discounts that have been acquired by or granted to the other party shall lapse. 

 

13. Netting

 

In accordance with the Law on Financial Securities of 15 December 2004 (article 14), NBX and the other party shall automatically and by operation of law set off all currently existing and future debt claims against one another. This means that in the ongoing relationship, the largest debt per balance shall alone remain after the aforementioned automatic set-off.

Such netting of debts shall in any case be legally valid with regard to any third party or creditors, who thus shall be unable to object to the netting.

 

 

14. Suspension and termination of the contract

 

In the event of the non-compliance with one or more of its contractual obligations, every party has the possibility (and the right) to rectify its breach(es) of contract within a period of ten calendar days after have being formally requested to comply with its contractual obligations.

NBX has an important commercial value and attaches great importance to the legality of commercial action. In the event of receiving unfavorable information about the other party’s solvency or commercial situation, such as, though not confined to, protested bills, summons to appear in court because of unpaid invoices or social security contributions, tax debts, entries in distraint reports, etc., NBX shall be entitled to suspend all further work, or even terminate the contract with immediate effect and without compensation, should the other party not be able to provide these guarantees within the timeline provided by NBX. 

In the event of any change in the other party’s circumstances, such as death, change of corporate form, merger, acquisition or transfer, or in the event that the she is declared bankrupt, requests deferral of payment, or goes into liquidation or dissolution, or if a temporary administrator, sequestrator, debt mediator or similar  person is appointed for the other party, NBX shall likewise be entitled to regard the contract as terminated as of right and with immediate effect at the other party’s expense, and without any liability to pay any compensation as a result. 

If the contract is terminated or cancelled at the expense of the other party NBX is entitled to payment for all goods and/or services already delivered on the date of termination or cancellation, as well as to additional compensation for loss of profit, which is set at a fixed level of 30% of the amounts that would still have been payable if the contract or order had been carried out in full, without prejudice to its right to substantiate a claim for greater actual damage. 

 

 

15. Force majeure

 

In the event of force majeure, NBX has the right, without being liable to pay any compensation, to permanently abstain from executing all or part of the order or to postpone its execution. The following are among the circumstances that shall be regarded as force majeure: strike, lockout, wars, epidemics, pandemics, fire, machinery breakdown, illness or accident of the persons charged with execution of the order, non-compliance with their obligations by suppliers or the partners and/or subcontractors on which it relies, power cuts and any circumstances that bring about a fundamental change in the economic situation. Should any circumstance render the execution of the contract particularly onerous or unreasonable for NBX, she shall likewise be entitled to permanently abstain from executing all or part of the contract without being liable to pay compensation or to suspend the execution of the contract until this circumstance ceases to apply, or to invite the other party to renegotiate the contract.

If NBX has already partly fulfilled its obligations or is only partly able to do so, it may invoice separately for the part which has already been delivered or is deliverable, and the other party shall be obliged to pay this invoice. 

 

 

16. Validity of individual clauses

 

The nullity or invalidity of one or more provisions of these general terms and conditions or of the contract in no way affects the validity of the other provisions thereof. Once a provision of these general terms and conditions or of the contract proves void or invalid, the parties shall negotiate in good faith to replace the void or invalid provision with a fully valid and enforceable provision that reflects the original intent of the parties as closely as possible. 

 

 

17. Prohibition of predatory recruitment

 

The other party and affiliated companies undertake not to recruit or contract, either directly or indirectly, any personnel or appointees or agents of NBX, both during the term of the work and for a period of 12 calendar months after the work is completed. Recruiting or contracting is understood to mean: offering employment, either in an employment relationship, or on a self-employed basis, in person, or with regard to a company, of which the person involved would be manager and/or shareholder, or to encourage them in any way whatsoever to break their contract with NBX, even if the other party is approached by the employee, agent or appointee.  

Any breach by the other party of the above prohibitions shall render payable by the to NBX a fixed and unchangeable sum in compensation in the amount of the last annual gross salary, including fringe benefits, of the employee or agent concerned.  

 

 

18. Confidential information & privacy

 

The parties undertake reciprocally not to disclose to third parties each other's trade or business secrets, nor each other's methods/procedures or programs, nor to engage in any act of unfair competition or participate directly or indirectly in such acts, nor to jeopardize each other's name and reputation. 

If NBX shall make personal data available to the other party, the latter shall be obliged to comply, inter alia, with the provisions of the European GDPR. The other party shall process the personal data in a proper, careful and transparent manner, and shall ensure sufficient security of the personal data entrusted to her and shall, among other things, use the appropriate technical and organizational means to that end. The entrusted personal data will be kept confidential by the other party. If a possible data breach is discovered, the other party will inform the company by e-mail within 24 hours. The other party is liable for any breach of the obligations as provided by the GDPR. 

 

 

19. Applicable law and competent court

 

All quotations and offers of and/or contracts with NBX are exclusively governed by Belgian law. Any disputes shall be settled by the courts of the judicial district, based on the official registered company address of NBX, to the exclusion of any other (arbitration) tribunal or court.