1. Definitions

“Background knowledge”

All information, know-how, methods, techniques, technologies, skills, algorithms, methodologies, materials and intellectual property rights in the same or in related domains of the order, owned by and/or in possession of or controlled by BRU / TWINBRU prior to the commencement date of the order, as well as all developments, improvements and/or completions made by BRU / TWINBRU and/or introduced here outside of the scope of performance of the order.

“Foreground knowledge”

All knowledge, information, know-how, methods, techniques, skills, algorithms, materials and intellectual property developed by BRU / TWINBRU within the scope of performance of the order.

“Material”

All goods such as basic raw materials, additives, prototypes, photographs, … which are transferred by the Customer to BRU / TWINBRU within the scope of the Order. Certificates, reports, manuals, drawings, spreadsheets, … in relation to these goods are also considered Materials.

“Order”

The instruction from the Customer accepted by BRU / TWINBRU, on the basis of which BRU / TWINBRU proceeds to realize a Result based on the Material supplied by the Customer.

“Results”

The data and goods which, according to the stipulations of the Order, are delivered by BRU / TWINBRU to the Customer at the end of the agreement, to the exclusion of any back- or foreground knowledge.

2. Preliminary

All works and services by BRU / TWINBRU are executed and/or rendered under the terms and conditions indicated below. Subject to any written deviation explicitly approved by BRU / TWINBRU, these terms and conditions take priority over any other contractual provision, including the Customer’s general terms of purchase.

BRU / TWINBRU executes the Customer’s Order to the best of its knowledge and ability and with the meticulousness that may be expected of a professional service provider in similar circumstances, according to the rules, and bearing in mind the laws, standards, requirements and regulations in force on the date of conclusion of the agreement. As for the intended Results, BRU / TWINBRU enters into an obligation of means with the Customer.

3. Offers and prices

The agreement with the Customer shall not take effect until the order placed by the Customer has been confirmed in writing by BRU / TWINBRU or until the performance of the contract is started. This order can be placed either in writing or verbally. Unless expressly stipulated otherwise, the prices are indicative. BRU / TWINBRU reserves the right to adjust its prices, according to changes in cost prices.

The subscriber placing an order in his own name or in the capacity of mandatory, or the person paying in whole or in part for the order, even on behalf of third parties, warrants performance by these third parties and binds oneself jointly and severally for them.

4. Performance

The Customer undertakes to make all required Material available to BRU / TWINBRU in a timely manner to enable the latter to execute the Order. BRU / TWINBRU cannot be held liable for incorrect or incomplete Material provided by the Customer or for any delay in the execution due to the fact that those Materials were made available too late.

Unless otherwise agreed between BRU / TWINBRU and the Customer, the stated times of delivery are indicative. BRU / TWINBRU shall inform the Customer without delay from the moment BRU / TWINBRU suspects or becomes aware that the performance will be significantly delayed and can therefore only be executed with a significant deviation from the indicated delivery time. A delay can never give rise to the termination of the Order and/or to any claim for damages. In the event of a significant deviation from the indicated delivery time, BRU / TWINBRU and the Customer will determine by mutual agreement any actions to be taken.

5. Liability

Under no circumstance can BRU / TWINBRU be held liable for indirect damage caused to the Customer or any direct or indirect damage caused to a third party. 

Materials provided will be returned only upon prior written request from the Customer. Potential risks of the Materials must be notified in writing by the Customer. 

The Customer remains liable for the Materials at all times. Although BRU / TWINBRU will do its best to keep the Material safe, BRU / TWINBRU will not at any time be liable in any form, on any ground for any possible damage to or (partial) loss of the Materials or any possible damage caused (directly or indirectly) by the Materials. 

In no event and under no circumstances shall BRU’s / TWINBRU’s (combined – resulting of one of more events) liability as a (direct or indirect) result of and/or in the execution of the Order, exceed the total amount (excluding taxes and costs charged by BRU / TWINBRU) by BRU / TWINBRU received from the Customer as a result of the execution of the relevant Order during the month prior to the Customer's formulation of the claim to BRU / TWINBRU.

6. Confidentiality

Unless otherwise agreed between BRU / TWINBRU and the Customer, the conditions as stipulated in the NDA attached, on the use of information and materials to be exchanged within the framework of the order shall apply.

All information, of whatever nature or form, with the exception of the Results, that is made known to the Customer by BRU / TWINBRU, is confidential.

All Material and/or information, of whatever nature or form, that is made known to BRU / TWINBRU by the Customer, is confidential and may not be passed on to third parties without the Customer’s explicit consent. 

Notwithstanding any other provision in this Agreement, it is agreed that the following shall not constitute Confidential Information for purposes of restrictions and protections set forth in this Agreement: 

(i) information that was known by the Recipient or its Representatives prior to the disclosure thereof by the other party, as evidenced by Recipient's contemporaneous written records; 

(ii) information that properly comes into a Recipient’s or its Representatives’ possession from a third person who is not, to the Recipient’s knowledge, under any obligation to maintain the confidentiality of such Confidential Information; 

(iii) information that has become publicly available other than through any fault of the Recipient in breach of this Agreement; 

(iv) information the Recipient can demonstrate was independently developed by it or its Representatives or a third party without use of Confidential Information received from the other party; or 

(v) information that is authorized in writing by the Discloser to be released from the confidentiality obligations herein.  In the event that a party to this Agreement is legally requested or required to disclose any Confidential Information received from the other party, the Recipient shall promptly notify the Discloser of such request or requirement prior to disclosure whenever practicable, unless such notice to the Discloser is prohibited by applicable law, government regulation, or requirement of regulators, so that the Discloser may seek an appropriate protective order and/or limit the scope of the disclosure. 

7. Results

All IP related to Material is and will remain the property of Customer at all times. BRU / TWINBRU obtains a temporary (for the term of the agreement), royalty-free, non-transferable license to use this IP solely to realize the Results for the Customer.

The performance of the Order by BRU / TWINBRU does not imply in any way or at any time the transfer of Intellectual Property Rights (including fore- and Background knowledge) from BRU / TWINBRU to the Customer or to third parties.

Depending on the timely and full payment of the agreed sum for the Order, the Customer acquires only the right to the uninhibited and enduring use of the Intellectual Property Rights related to the Result without, unless explicitly agreed otherwise, the right to edit or resell the Result.

8. Publications

BRU / TWINBRU has the right to make the Results known and to publish them, except when the Results contain confidential information of the Customer.

Unless he has obtained the prior consent of BRU / TWINBRU, the Customer is not allowed to use the name of BRU / TWINBRU, of its staff members and agents and/or the brands or the logo for external communication purposes, whether for commercial or any other purposes.

The Customer declares that he has sufficient rights with regard to the models (regardless of whether or not they are copy right protected or copy right protectable) used in the Results and allows BRU / TWINBRU to further publish these Results (including the image of the relevant models) and use these for commercial purposes.

9. Payment of invoices

All taxes, duties and/or levies, of whatever nature, relating to results are to be paid entirely by the Customer.

Invoices must be paid no later than 30 days after the end of the month, in the currency mentioned on the invoice. Any invoice that is not paid in full within said period shall be increased, by operation of law and without prior notice of default, by 15% of the amount due, with a minimum of 100 Euros. The sum including the surcharge shall, by operation of law and without prior notice of default, bear interest at a rate of 1 % per month. Any started month shall be regarded as a complete month.

10. Complaints

BRU / TWINBRU must be notified in writing of any defects at the latest within eight (8) working days after the delivery of Results. The defects must be described in detail by the Customer. After this term the Customer is deemed to have accepted the results and to have found that they are in conformity with the requirements. Lodging a complaint does not release the Customer from his payment obligations.

If a complaint is found to be justified by BRU / TWINBRU, Bru / TWINBRU has the choice:

- either redo the order and/or repair the defect;

- or cancel the order and refund the amounts charged and paid by the Customer in relation to the order. 

The Customer is not entitled to any other form of compensation.

11. Termination of the contract by BRU / TWINBRU

In the event of non-payment by the Customer or if the latter fails to fulfil his obligations, BRU / TWINBRU shall have the right to terminate the contract with immediate effect by sending a simple written notification eight (8) days following a notice of default that was ignored, without prejudice to BRU / TWINBRU’s right to demand reimbursement of all costs incurred and compensation for any losses suffered.

12. Termination of the contract by the Customer

If the Customer wants to terminate the contract, this must be done in writing. Such termination shall be valid only if it was accepted in writing by BRU / TWINBRU. In the event that a contract is terminated by a Customer, the latter shall be liable to pay a compensation equaling 75 % of the total price agreed.

13. Terms of performance

BRU / TWINBRU undertakes to carry out each Order with care and in accordance with the applicable rules, with due confidentiality and bearing in mind the state of the art and knowledge. However, this does not imply any obligation of result. BRU / TWINBRU will make every possible effort to meet the agreed deadline for performance. Any delay on the part of BRU / TWINBRU can never give rise to payment of damages or to the dissolution of the contract.

14. Force majeure

BRU / TWINBRU shall be released ipso jure and shall not be liable to fulfil any commitment vis-à-vis the Customer in the event of force majeure. A case of force majeure is understood to mean any situation which makes the performance of the contract by BRU / TWINBRU wholly or partly impossible, be it temporarily or not, due to circumstances beyond BRU / TWINBRU’s control, even if this circumstance was foreseeable at the time of conclusion of the contract.

Are considered to be cases of force majeure (non-exhaustive list): defective equipment, strike, absence of delivery or late delivery of necessary materials, etc. In case of force majeure, BRU / TWINBRU’s obligations shall be suspended. In such cases BRU / TWINBRU shall make every reasonable effort to reduce the consequences of the force majeure event to a minimum. Should the event of force majeure last longer than two (2) months, then the Customer shall have the right to terminate the contract without intervention of the court, and without BRU / TWINBRU being liable to pay any compensation to the Customer.

15. Competent courts – Applicable law

Any dispute relating to the conclusion, the validity, the interpretation or the performance of a contract between BRU / TWINBRU and a Customer shall be governed by Belgian law. The courts in the district where BRU / TWINBRU has its registered office or any other court at the discretion of BRU / TWINBRU shall have exclusive jurisdiction.

ATTACHMENT: NON-DISCLOSURE AGREEMENT – “NDA”

1. Confidential Information.  

“Confidential Information” shall include any and all proprietary information disclosed by the Discloser to the Recipient or to which a party has obtained access as a result of the Collaboration, whether before or after Commencement date, regardless of the form of disclosure, including but not limited to its products, designs, business plans, business opportunities, finances, research, and development, Customers, suppliers, employees and other staff. No formal identification of materials or other information as “Confidential Information” shall be required.

2. Non-disclosure.  

Each Recipient agrees, represents and warrants that it: 

(i) shall use the Discloser's Confidential Information solely for purposes of the Collaboration and shall not use the Discloser's Confidential Information in any way for its own or any third party’s benefit; 

(ii) shall not disclose, publish, or disseminate the Discloser's Confidential Information to anyone other than those of its employees, officers, directors, consultants, affiliates, financing sources, advisors, or agents (collectively, “Representatives”; Recipient’s Representatives shall further be defined to include only those Representatives to whom Confidential Information has been or hereafter is provided by Recipient, or by the Discloser or its Representatives at Recipient’s request) who have a need to know for purposes of the Collaboration and who have been advised of the confidential nature of said information; 

(iii) shall take commercially reasonable precautions (in no event less stringent than the precautions taken by recipient to protect its own Confidential Information) to prevent any disclosure, publication, dissemination or unauthorized use of the Discloser's Confidential Information; and 

(iv) shall not reproduce any of the Discloser's Confidential Information, except as necessary for the Collaboration, without the written consent of the Discloser.  

Each Recipient shall be responsible for any breach of this Agreement by its Representatives; provided, however, that Recipient shall not be responsible for breach of this Agreement by any of its Representatives who separately enter into a confidentiality agreement with the Discloser. 

3. Communication.

All communication of Confidential Information and security sensitive information (such as passwords) towards and from Bru has to be done via secure communication channels: password protected files or links.

for these purposes e-mail is not the most secure communication channel and should only be used for non-confidential organizational information.

4. Access to the information.

The Discloser shall at all times have access to and the recipient shall at all times grant access to the Discloser's information held by the Recipient. The Discloser also has the right at all times to correct or delete this information at its own discretion and the Recipient will only keep the corrected information and remove the deleted information from its systems in accordance with the discloser's request.

The Disclosure makes no warranties with regard to the disclosed information other than those provided for in the agreement under which this NDA was entered into.

5. Term. 

This Agreement shall become effective as of Commencement date, provided that this Agreement shall cover all Confidential Information related to the Collaboration disclosed by the Discloser to the Recipient whether before or after. Also after expiry of the agreement / assignment in the context of which this NDA was concluded, the information remains confidential as long as it is relevant to at least one of the parties involved and has not been disseminated publicly in a legal manner

6. Limitations.  

Notwithstanding any other provision in this Agreement, it is agreed that the following shall not constitute Confidential Information for purposes of restrictions and protections set forth in this Agreement: 

(i) information that was known by the Recipient or its Representatives prior to the disclosure thereof by the other party, as evidenced by Recipient's contemporaneous written records; 

(ii) information that properly comes into a Recipient’s or its Representatives’ possession from a third person who is not, to the Recipient’s knowledge, under any obligation to maintain the confidentiality of such Confidential Information; 

(iii) information that has become publicly available other than through any fault of the Recipient in breach of this Agreement; 

(iv) information the Recipient can demonstrate was independently developed by it or its Representatives or a third party without use of Confidential Information received from the other party; or 

(v) information that is authorized in writing by the Discloser to be released from the confidentiality obligations herein.  In the event that a party to this Agreement is legally requested or required to disclose any Confidential Information received from the other party, the Recipient shall promptly notify the Discloser of such request or requirement prior to disclosure whenever practicable, unless such notice to the Discloser is prohibited by applicable law, government regulation, or requirement of regulators, so that the Discloser may seek an appropriate protective order and/or limit the scope of the disclosure. 

7. Ownership of Confidential Information.  

All Confidential Information and other information or materials disclosed by the Discloser to the Recipient shall remain the property of the Discloser.  No license or other rights to Confidential Information and/or any patents, copyrights, trade names or trademarks are granted or implied by this Agreement or either party’s disclosure of Confidential Information to the other hereunder. 

At the latest upon termination of the underlying agreement or so much earlier when the confidential information is no longer relevant for the execution of the underlying agreement, the recipient will return the confidential information received back to the Discloser. 

Each Recipient agrees to destroy, and direct its Representatives to destroy, as soon as reasonably practical upon written request, all of the Discloser's Confidential Information, and any materials prepared by or on behalf of the Recipient that contain or are based upon Confidential Information covered by this Agreement. Notwithstanding the foregoing, Recipient and its Representatives may retain copies of Confidential Information as necessary to comply with, or evidence their respective compliance with applicable law and regulation.

This provision cannot result in the services / goods provided in execution of the underlying contract being no longer available. In light of this, the parties undertake to keep the confidential information available to the other as long as they are useful or necessary for the proper functioning of the services / goods provided.

8. No Further Obligation.  

Each party retains the right, in its sole discretion, to determine whether to disclose its Confidential Information to the other party, and disclosure of Confidential Information of any nature shall not obligate the Discloser to disclose any further Confidential Information.  Neither party shall be under any obligation of any kind whatsoever to enter into any further agreement with the other party by reason of this Agreement. Neither party makes any representations, express or implied, as to the accuracy or completeness of the Confidential Information, and each party agrees that the Discloser and its representatives shall have no liability as a result of having provided Confidential Information hereunder.  Each Discloser hereby expressly disclaims any and all liability that may be based, in whole or in part, on any Confidential Information, errors therein or omissions thereof.  Neither party is responsible or liable for any business decisions made or inferences drawn by the other party in reliance on actions taken or disclosures made pursuant to this Agreement absent a separate written agreement to the contrary.

9. Right to Business. 

Nothing in this Agreement will prohibit a party from entering into business relationships with other persons who have products, concepts, systems or techniques that are similar to or compete with the products, concepts, systems or techniques contemplated by or embodied in the Confidential Information provided that Company does not violate any of its obligations under this Agreement in connection therewith.

10. Press release. 

Neither party shall make any press release or other public utterances of any kind regarding this Agreement, the information received as part of this Agreement or the contents of this Agreement without prior written consent of the other party.

11. Further development. 

Both parties recognize that the other may be engaged in the development of products that may be competitive with those of the other party. Nothing in this Agreement shall be construed to prohibit a party from engaging in the research, development, marketing, sale or licensing of any product independently developed and produced without the use of the other party's Confidential Information. 

12. Damage.

The Recipient understands and acknowledges that any disclosure or misappropriation of any of the Confidential Information in violation of this Agreement may cause the Discloser irreparable harm, the amount of which may be difficult to ascertain. Therefore, the infringing Recipient will pay a fixed compensation to the Discloser equal to € 2,500 per infringement.

Such right is in addition to the remedies otherwise available to The Receiving Party at law or in equity. 

13. Severability.  

Should any provision of this Agreement be determined to be void, invalid or otherwise unenforceable by any court or tribunal of competent jurisdiction, such determination shall not affect the remaining provisions hereof, which shall remain in full force and effect.  No waiver or modification of any of the provisions of this Agreement shall be valid unless in writing and signed by both of the parties.