ARTICLE 1. DEFINITIONS
In addition to the terms as defined on the Signing Page, the following expressions (either in singular or plural and with first letter capitalised) shall have the meaning set opposite:
- Background means information, techniques, Know-how, software and materials regardless of the form or medium in which they are disclosed or stored – including any relevant Intellectual Property – that are provided by one party to the other for the purpose of carrying out the Services whether before or after the Start date of this Agreement.
- Confidential Information means Background or any other information in whatever form disclosed by one party to the other and identified in writing as confidential before or at the time of disclosure, or the confidential nature of which was confirmed by the disclosing party in writing within ten calendar days counting from the date of its disclosure.
- Intellectual Property means patents, breeding rights, trademarks, registered designs, copyrights, database rights, design rights, semiconductor topographies, applications for any of the above, and any similar right recognised from time to time in any jurisdiction, together with all rights of action in relation to the infringement of any of the above; Intellectual Property does not include the copyright to Publications.
- Knowhow means technical information (including, without limitation, information relating to inventions, discoveries, concepts, methodologies, models, research, development and testing procedures, the results of experiments, tests and trials, manufacturing processes, techniques and specifications, quality control data, analyses, reports and submissions) and materials that are not, as a body or in the precise configuration and assembly of their components, generally known or readily accessible.
- Results means the deliverables as defined in each respective Task Orders and as reported by KYTOS, excluding any Background.
- Services means the programme of work (including the final report) as described or referred to in the respective Task Orders.
- Task Order: a document executed by the parties describing the Services to be carried out by KYTOS under the terms as set out in this Agreement. A specimen task order is annexed to this document
ARTICLE 2. THE SERVICES
- KYTOS shall carry out the tasks as described in each relevant Task Order. The Services will be carried out under the direction and supervision of the KYTOS Promotor(s). KYTOS shall use reasonable endeavours to carry out the Services in accordance with good professional practice, but does not guarantee a successful outcome to scientific research activities.
- The parties shall describe the services to be carried out by KYTOS from time to time in one or more Task Orders. It is possible to deviate in a specific Task Order from the General Terms by speciﬁc reference to the relevant clauses in these General Terms or to formulate additional special terms and conditions. Such alterations or additions shall only apply to the Services as described in the relevant Task Order and shall not be considered to be general amendments to these General Terms.
- The Client shall provide the necessary materials and information to enable KYTOS to carry out the Services. KYTOS is not liable for any delay in the performance of the Services if such delay is caused by a delay on the part of the Client in providing such necessary information or materials.
- Upon completion of the Services, KYTOS shall provide a report and a detailed invoice to the Client.
- KYTOS shall assume a reasonable degree of care for the safekeeping of any materials which the Client has put at KYTOS’ disposal for the performance of the Services (“Test Materials”), but does not assume any other responsibility for the safekeeping of the Test Materials. All risks of accidental damage or loss of Test Materials shall be borne by the Client. The Client shall, to his own discretion, insure the Materials to cover the aforementioned risks. Any special precautions in handling or storing of the Test Materials by KYTOS shall be described in the relevant Task Orders.
- Within sixty calendar days counting from the date of completion of the Services, the Client shall recuperate any Test Materials still in KYTOS’ possession or shall order KYTOS in writing to destroy the remaining Test Materials. If the Client does not recuperate the Test Materials or does not notify KYTOS within the aforementioned sixty calendar day period KYTOS shall have the right to decide at its own discretion to either have the Test Materials returned to the Client or to have them destroyed. In any case, the cost and risk associated with the recuperation, delivery or destruction of Test Materials shall be borne by the Client.
ARTICLE 3. FINANCES
- The Client shall pay the financial compensation in accordance with the terms a set out in each Task Order.
- Unless stated otherwise in the respective Task Orders, all amounts payable to KYTOS under this Agreement are inclusive of institutional overhead and exclusive of VAT (or any similar tax), which the Client shall pay at the rate from time to time prescribed by law.
ARTICLE 4. BACKGROUND KNOWLEDGE, RESULTS AND INTELLECTUAL PROPERTY RIGHTS
- This Agreement does not affect the ownership of any Background. Background remains the property of the party that contributes it to the rendering of the Services or to its licensors. No right or licence to use any Background is granted or implied by this Agreement except for the rights expressly granted in this Agreement. Each party shall fully and exclusively own any improvements to its Background resulting from the performance of the Services.
- The Client shall have full ownership of the Results.
- Neither party shall use the other party’s name or trademarks for advertising purposes without express written consent. In all other communications concerning the Services (including any Publication), the parties shall refer to each other in accordance with good scientific and academic practice.
ARTICLE 5. CONFIDENTIALITY
- Neither party shall, for a period of three years counting from the date of disclosure of Confidential Information by the other party, disclose to any third party, nor use for any purpose except the carrying out of the Services, any of the other party’s Confidential Information.
- The parties shall use diligent efforts to select the above-mentioned persons and ensure that each of its employees, contractors or students preserve and protect the confidentiality ofall Confidential Information in accordance to the confidentiality obligations under this Agreement.
- Neither party will be in breach of any obligation of confidentiality or limited use to the extent that it can reasonably prove that such information received:
- was known by or in possession of the receiving party prior to the time Confidential Information became available to the receiving party;
- is in the public domain, except by breach of this Agreement or other unauthorized act or omission;
- was lawfully and in good faith made available to the receiving party without restriction by a third party who, to the best of the receiving party’s knowledge, is not subject to obligations of confidentiality with respect to such Confidential Information;
- was independently developed by the receiving party without the use of the Confidential Information;
- was disclosed pursuant to a legal requirement, the order of a court of competent jurisdiction or any competent authority after having notified the other party of such requirement and of the precise information that was required to disclose; or
- was cleared for dissemination by the disclosing party.
ARTICLE 6. LIMITATION OF LIABILITY
- The parties do not represent nor warrant to each other that any advice or information provided by them or by any of their employees or students will not constitute or result in any infringement of third-party rights.
- Neither party accepts any liability or responsibility for any use by the other party of any Results, nor for any reliance which may be placed by that other party on any Background, materials, Results, nor for advice or information given relating to any Results.
- The liability of either party to the other for any breach of this Agreement, any negligence or arising in any other way out of the subject matter of this Agreement, the Services and the Results, will not extend to any indirect damages or losses, or to any loss of profits, loss of revenue, loss of data, loss of contracts or opportunity, whether direct or indirect, even if the party bringing the claim has advised the other of the possibility of those losses, or if they were within the other party’s contemplation.
- The aggregate liability of each party to the other for all and any breaches of this Agreement, any negligence or arising in any other way out of the subject matter of this Agreement, the Services and the Results, will not exceed in total the financial compensation as set out in the relevant Task Order.
- Nothing in this Agreement limits or excludes a party’s liability for gross negligence, death or personal injury, any fraud or any sort of liability that, by law, cannot be limited or excluded, or any loss or damage caused by a deliberate breach of this Program Agreement or a breach of Article 5.
ARTICLE 7. TERM AND TERMINATION
- The Parties shall be excused from any failure to perform any obligation hereunder to the extent such failure is caused by a Force Majeure Event. A Force Majeure Event shall operate to excuse a failure to perform an obligation hereunder only for the period of time during which the Force Majeure Event renders performance impossible or infeasible and only if the Party asserting Force Majeure as an excuse for its failure to perform has provided written notice to the other Party specifying the obligation to be excused and describing the events or conditions constituting the Force Majeure Event. As used herein, “Force Majeure Event” means the occurrence of an event or circumstance beyond the reasonable control of the party failing to perform, including, without limitation, (a) explosions, fires, flood, earthquakes, catastrophic weather conditions, or other elements of nature or acts of God; (b) acts of war (declared or undeclared), acts of terrorism, insurrection, riots, civil disorders, rebellion or sabotage; (c) acts of federal, state, local or foreign governmental authorities or courts; (d) labour disputes, lockouts, strikes or other industrial action, whether direct or indirect and whether lawful or unlawful; (e) failures or fluctuations in electrical power or telecommunications service or equipment; and (f) delays caused by the other Party’s non-performance hereunder.
- This Services Agreement shall take effect on the Start date and shall continue until the End date as indicated on the Signing Page unless terminated as provided below. Each Task Order shall also take effect as of the start date designated in each Task Order. Termination of this Master Agreement or of a Task Order shall not affect any other Task Order; each Task Order shall continue in full force and effect unless specifically terminated in accordance with these Terms and Conditions or the specific terms of that Task Order.
- Client reserves the right to terminate any Task Order, in whole or in part, with or without cause, upon written notice to KYTOS with a thirty (30) calendar day notice period. In such an event, KYTOS shall use all reasonable efforts to conclude or transfer the Services, as directed by Client, as expeditiously as possible. KYTOS shall not undertake further work, incur additional expenses other than those irrevocably obligated, or enter into further commitments with regard to any Service terminated in this way after receiving such notice of termination from Client, except as mutually agreed upon in writing by the parties.
- In the event of a termination of the Services pursuant to Clause 7.2, KYTOS shall be entitled to compensation as follows:
- All payments due and owing under the Task Order at the effective date of termination for work completed and in progress;
- Reimbursement for any non-cancellable services and commitments entered into by KYTOS for the performance of the Services, provided KYTOS, upon Client’s request, provides Client with documentation of completion of work or expenses incurred;
- Failure by either party to comply in any material respect with any of its obligations in this Agreement shall entitle the other party to give notice to the party in default requiring it to cure such default. If such default is not cured or a remedial plan acceptable to the non-breaching party has not been put in place within thirty (30) calendar days after receipt of such notice, the notifying party shall be entitled to terminate the Agreement by giving notice of such termination to take effect immediately. The right of either party to terminate this Agreement, as herein provided, shall not be affected in any way by its waiver of, or failure to take action with respect to, any previous default.
- Each party may terminate this Agreement or any Task Order by immediate written notice if the other party becomes insolvent, or if proceedings are instituted against the other party for reorganization or other relief under any bankruptcy law, or if any substantial part of the other party’s assets come under the jurisdiction of a receiver or trustee in an insolvency proceeding authorized by law.
- Upon effective date of termination of this Agreement or Task Order, for whatsoever reason, KYTOS shall (i) return to Client, or destroy as directed by Client, all specimens and all unused quantities of materials (including without limitation references and reagents) and (ii) deliver to Client all data and information which are Client’s property as defined in this Agreement or the relevant Task Order as well as any accompanying documentation provided by Client.
- Termination of this Agreement shall not release either party hereto from any liability or right or action, which at the time of termination has already accrued to either party hereto or which may thereafter accrue in respect of any act or omission prior to such termination.
- After termination of this Agreement, any obligation, which by its nature extends beyond the term or termination of this Agreement, will remain in full force and effect.
ARTICLE 8. PROTECTION OF PERSONAL DATA
- The parties commit themselves to respect the European Regulation EU 2016/679 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data (GDPR) as well as the national applicable laws.
- The parties may share personal data of individuals involved in the collaboration such as: name, business telephone, address, and email (“Business Contact Information”). Each party may store and otherwise process such Business Contact Information. The parties agree that Business Contact Information will only be processed for administrative purposes to the limited extent as required for the performance of this Agreement.
- If the processing of other than Business Contact Information is necessary for the performance of this Agreement, the parties commit themselves to agree and enter into a data processing agreement, which shall be attached to this Agreement to constitute the entire Agreement between the parties in order to reflect each party’s rights and obligations in this respect. In case of any conflict between the data processing agreement and this Agreement, the provisions of the data processing agreement shall prevail in relation to the matters covered by the data processing agreement. For all other matters the provision of this Agreement shall prevail.
ARTICLE 9. GENERAL
- Human Rights. The parties represent and warrant to respect human rights. The present agreement and any Task Order executed under it may be terminated with immediate effect upon written notice by each party in case of involvement of the other party in a serious infringement of human rights.
- Assignment: Neither party may assign or transfer this Agreement as a whole, or any of its rights or obligations under it, without first obtaining the written consent of the other party. That consent may not be unreasonably withheld or delayed.
- Illegal/unenforceable provisions: If the whole or any part of any provision of this Agreement is void or unenforceable in any jurisdiction, the other provisions of this Agreement, and the rest of the void or unenforceable provision, will continue in force in that jurisdiction, and the validity and enforceability of that provision in any other jurisdiction will not be affected.
- Waiver of rights: If a party fails to enforce, or delays in enforcing, an obligation of the other party, or fails to exercise, or delays in exercising, a right under this Agreement, that failure or delay will not affect its right to enforce that obligation or constitute a waiver of that right. Any waiver of any provision of this Agreement will not, unless expressly stated to the contrary, constitute a waiver of that provision on a future occasion.
- No agency: Nothing in this Agreement creates, implies or evidences any partnership or joint venture between the parties, or the relationship between them of principal and agent. Neither party has any authority to make any representation or commitment, or to incur any liability, on behalf of the other.
- Amendments: No variation or amendment of this Agreement will be effective unless it is made in writing and signed by each party’s representative.
- Governing law and competent courts: This Agreement is governed by, and is to be construed in accordance with Belgian Law. The courts of the judicial district of East Flanders will have exclusive jurisdiction to deal with any dispute, which has arisen or may arise out of or in connection with this Agreement, except that either party may bring proceedings for an injunction in any jurisdiction.