Green Crossroads general business terms & conditions

 

Services

 

(a)  Green Crossroads bvba (“Green Crossroads”) will provide the client (the “Client”) with the services (the “Services”) described in the engagement letter (the “Engagement Letter”), proposal or statement of work or other means of communication discussing the scope of services (e.g. e-mail correspondence). These documents together with their appendices form the whole agreement between the parties (the “Agreement”).   

 

The general business terms & conditions apply to all Green Crossroads' engagements and are deemed to be accepted upon signature of the engagement letter or by payment of the first invoice.

 

For the purposes of this Agreement, the Client shall include such Client’s subsidiaries and/or affiliates as identified in the Engagement Letter or, if none is identified, all Client’s subsidiaries and affiliates (together with Client, “Client Group”).  The Client represents and warrants that it has the power and authority to accept, approve and execute this Agreement on behalf of, and to bind, itself and its subsidiaries and/or affiliates identified in the Engagement Letter or if none identified those forming part of the Client Group.

 

(b) Green Crossroads’ Services may include advice and recommendations, but all decisions in connection with the implementation of such advice and recommendations shall be the responsibility of, and made by, the Client. Green Crossroads shall perform the Services as an independent contractor and in full liberty, as far as the organisation of the work and the working time, as well as the manner of performance of the Services is concerned. Green Crossroads will only be liable for the final product of its Services and shall not be under the hierarchic supervision of the Client. The results of the Services does not constitute the only factor to be taken into account by the Client when deciding whether or not to proceed with a specific course of action, and it is the Client’s decision alone as to whether or not to proceed.

 

The Services do not include the power to take any decision on behalf of the client that would bind the latter vis-à-vis any third party, without prior consent of the client. In particular, nothing contained in this agreement shall be deemed to be an appointment as an agent of the client or grant Green Crossroads or anyone acting on Green Crossroad’s behalf any authority, explicitly or implied, to negotiate, bind or commit the client to any obligations of whatever kind or nature.

 

Except as otherwise provided in the engagement letter, the Client shall be solely responsible for, among other things: (A) making all management decisions and performing all management functions; (B) designating one or more individuals who possess suitable skill, knowledge, and/or experience, preferably within senior management to oversee the Services; (C) evaluating the adequacy and results of the Services; (D) accepting responsibility for the results of the Services; and (E) establishing and maintaining internal controls, including, without limitation, monitoring ongoing activities.

 

(c) This Agreement is between the Client and Green Crossroads.  Green Crossroads may subcontract any Services under this Agreement to any associate, advisor or other partner organization (collectively “Subcontractors”).  Client’s relationship is solely with Green Crossroads as the entity contracting to provide the Services.  Each party is an independent contractor and neither party is, nor shall be considered to be, the other’s agent, distributor, partner, fiduciary, joint venture, co-owner, or representative.

Green Crossroads remains responsible to the Client for all of the Services under this Agreement, including the Services performed by its Subcontractors.  Accordingly, to the fullest extent possible under applicable law, none of the Green Crossroads subcontracts will have any liability to the Client and the Client will not bring, and will ensure that no other member of the Client Group brings, any claim or proceedings of any nature (whether in contract, tort, breach of statutory duty or otherwise, and including, but not limited to, a claim for negligence) in any way in respect of or in connection with this Agreement against subcontractors.

 

(d)  The Services may be performed away from the Client's site by Green Crossroads’ personnel or subcontractors.

 

 

Responsibilities of Green Crossroads

 

a) Green Crossroads warrants that it will perform the services in a professional manner, and with reasonable care and skill. It has no performance obligation but a reasonable endeavours commitment (“obligation de moyen”-“middelenverbintenis”). Except as set out in this Agreement, all conditions, warranties and representations, express or implied by: (i) statute; (ii) common law, or; (iii) otherwise in relation to the provision of Services under this Agreement, including as to their performance, fitness for purpose or satisfactory quality, are excluded.

 

b) The Services provided do not constitute a representation, warranty or guarantee that the events will occur in accordance with Green Crossroads’ advice or opinion.  Any Services provided by Green Crossroads will be based upon the facts (including the legal context), the data and information as provided by the Client and circumstances in effect at the time specific Services are provided.  Subsequent changes in or to the foregoing (for which Green Crossroads shall have no responsibility to advise Client) may result in the Services provided by Green Crossroads being rendered invalid. Green Crossroads has also no responsibility to update the attachments for facts and circumstances occurring after the date of its report.

 

c)  Except as specifically agreed to in writing, Green Crossroads shall only provide the Services in relation to the matters described in the Engagement Letter.

 

d)  Green Crossroads is under no obligation to ensure that the Services have been performed in compliance with the laws of a foreign jurisdiction other than Belgian law.

 

e)  Green Crossroads is not deemed to have knowledge of information from other engagements for the purposes of the provision of the Services, except to the extent specified in the Engagement Letter.

 

f)  In formulating any advice as part of the Services, Green Crossroads may discuss ideas with the Client orally or show the Client drafts of such advice.  To the extent that the content of such drafts or oral advice are expected to be finalized and confirmed to the Client in writing, such writing shall supersede any previous drafts or oral advice and, accordingly, Green Crossroads shall not be responsible if the Client or others choose to rely on, act or refrain from acting on the basis of such drafts or oral advice.

 

 

Responsibilities of the Client

 

a) The Client shall cooperate with Green Crossroads in the performance by Green Crossroads of the Services, including, without limitation, providing Green Crossroads with reasonable facilities and timely access to data, information and personnel of the Client Group.  The Client shall be responsible for the performance of its personnel and agents, for the timeliness, accuracy and completeness of all data and information (including all financial information and statements) provided to Green Crossroads by or on behalf of the Client Group and for the implementation of any advice provided as part of the Services.  Green Crossroads may use and rely on information and data furnished by the Client or others without verification.  Green Crossroads’ performance shall be dependent upon the timely performance of the Client’s responsibilities hereunder and timely decisions and approvals of the Client in connection with the Services.  Green Crossroads shall be entitled to rely on all decisions and approvals of the Client. Green Crossroads cannot be held accountable for any decision or consequence following incorrect or untimely information.

 

b)  The Client should not assume that all information, which it may have produced to other partners or staff of Green Crossroads or of any of its subcontractors, will be made available to the personnel on this engagement. Accordingly, it is important that all information, which has a bearing on this engagement, should be provided direct to the relevant team on the engagement even if it has already been provided to other members of the project.

 

c)  Except as otherwise provided in the Engagement Letter, the Client shall be solely responsible for, among other things: (A) making all management decisions and performing all management functions; (B) designating one or more individuals who possess suitable skill, knowledge, and/or experience, preferably within senior management to oversee the Services; (C) evaluating the adequacy and results of the Services; (D) accepting responsibility for the results of the Services; and (E) establishing and maintaining internal controls, including, without limitation, monitoring ongoing activities.

The results of the Services does not constitute the only factor to be taken into account by the Client when deciding whether or not to proceed with a specific course of action, and it is the Client’s decision alone as to whether or not to proceed.

 

d) Except as otherwise provided in the Engagement Letter, proposal or statement of work, the Deliverables or work product (as defined or described in the Engagement Letter) to be provided by Green Crossroads hereunder shall be deemed accepted if not rejected by Client in writing within fifteen (15) calendar days of delivery.

 


Responsibilities of both parties

 

Both parties agree to use all reasonable efforts to meet agreed target dates.

 


Confidentiality

 

a) To the extent that, in connection with this engagement, each party comes into possession of any proprietary or confidential information of the other party (“Confidential Information”), each party agrees to use the Confidential Information of the other party solely for the purposes of this engagement, and will not disclose such Confidential Information to any third party without the other party’s written consent save where prohibited by Belgian law.  The terms of this engagement shall also be considered Confidential Information, subject to the clause relating to the use of the Client name. Each party shall maintain the Confidential Information of the other party in confidence using at least the same degree of care as it employs in maintaining in confidence its own Confidential Information, but in no event less than a reasonable degree of care.

 

b) Confidential Information shall not include information which: (i) shall have become publicly available other than as a result of disclosure by the receiving party in breach hereof; (ii) was disclosed to the receiving party on a non-confidential basis from a source other than the disclosing party, which the receiving party believes it is not prohibited from disclosing as a result of an obligation in favour of the disclosing party; (iii) is developed by the receiving party independently of, or was known by the receiving party prior to, any disclosure of such information made by the disclosing party; (iv) is required to be disclosed by order of a court of competent jurisdiction, administrative agency or governmental body, or by any law, rule or regulation, or by subpoena, summons or any other administrative or legal process, or by applicable regulatory or professional standards; or (v) is disclosed with the written consent of the disclosing party.

 

c) The Client hereby consents to Green Crossroads disclosing such Confidential Information to any any Subcontractors, or to its legal advisors, auditors, and insurers or as may be required for the due performance of this Agreement.

 

d) The Client shall not disclose to any third party the advice, opinions, reports or other work product of Green Crosroads provided hereunder without the express written consent of Green Crossroads, except (i) where applicable laws, regulations, rules and professional obligations prohibit limitations on disclosure, The Client shall use the advice, opinions, reports or other work product of Green Crossroads solely for the purposes specified in the Engagement Letter and, in particular, shall not, without the prior written consent of Green Crossroads, use any advice, opinion, report or other work product of Green Crossroads in connection with business decisions of any third party or for advertisement purposes.  All Services are only intended for the benefit of the Client.  The mere receipt of any advice, opinions, reports or other work product by any other persons is not intended to create any duty of care, professional relationship or any present or future liability between those persons and Green Crossroads.  As a consequence, if copies of any advice, opinions, reports or other work product (or any information derived there from) are provided to others under the above exclusions, it is on the basis that Green Crossroads owes no duty of care or liability to them, or any other persons who subsequently receive the same, except for prior written approval to the contrary by the parties.

 

 

License and Ownership

 

Notwithstanding anything to the contrary in this section or the section with respect to confidentiality, the Client acknowledges that Green Crossroads, in connection with performing the Services, may develop or acquire general experience, skills, knowledge, and ideas that are retained in the memory of its personnel, representatives and partners.  The Client acknowledges and agrees that Green Crossroads may use and disclose such experiences, skills, knowledge and ideas.

 

Green Crossroads will own and retain ownership of all intellectual property rights and other proprietary rights of any kind that Green Crossroads may use or develop in connection with this Agreement (other than materials which the Client has provided to Green Crossroads in which the Client Group or third party retain intellectual property rights). 

 

This holds for all know-how , templates, methodologies, ideas, concepts, techniques, tools, processes, and technologies,.

 

 

Non-Exclusivity

 

This Agreement shall not preclude or limit in any way: (i) the right of Green Crossroads and their respective personnel, representatives and partners, to provide consulting or other services of any kind or nature whatsoever to any individual or entity as Green Crossroads in its sole discretion deems appropriate, or; (ii) developing for itself or for others, materials that are competitive with those produced as a result of the Services provided hereunder, irrespective of their similarity to the Deliverables.

 

Term

 

Unless terminated sooner in accordance with its terms, this Agreement shall terminate once the Services have been delivered.

 

Either party may terminate this Agreement with immediate effect by written notice to the other party on or at any time after the occurrence of any of the following events: i) a material breach by the other party of an obligation under this Agreement and, if the breach is capable of remedy, the other party failing to remedy the breach within thirty (30) days of receipt of the notice, ii) the other party passing a resolution for its winding-up or a court of competent jurisdiction making an order for the other party's winding-up or dissolution or (iii) either of the parties is declared bankrupt by a court of the competent jurisdiction.

 

Green Crossroads may terminate this Agreement with immediate effect upon written notice to the Client if Green Crossroads determines that (a) a governmental, regulatory, or professional entity, or an entity having the force of law has introduced a new, or modified an existing, law, rule, regulation, interpretation, or decision, the result of which would render Green Crossroads’ performance of any part of the Agreement illegal or otherwise unlawful or in conflict with independence or professional rules, or (b) circumstances change (including, without limitation, changes in ownership of the Client or any of its affiliates) such that Green Crossroads’ performance of any part of the Agreement would be illegal or otherwise unlawful or in conflict with independence or professional rules referred to further in the section relating to Compliance, (c) insufficient cooperation is received from the client (e.g. availability for meetings, providing data and other information), preventing Green Crossroads to carry out it to carry out the engagement. 

 

Upon termination of the Agreement, the Client will compensate Green Crossroads under the terms of the Engagement Letter for the Services performed and expenses incurred until the effective date of termination, including all costs or expenses made before the termination date for events after the termination date

 

 

Payment of Invoices

 

Green Crossroads’ invoices are due and payable by the Client within fifteen (15) calendar days after date of invoice. For invoices upon which payment is not received within fifteen (15) calendar days of the invoice date, interest shall accrue automatically and without serving notice at a rate of 12 % rate per annum. Without limiting its other rights or remedies, Green Crossroads shall have the right to suspend or terminate the Services entirely or in part if payment is not received within fifteen (15) calendar days of the invoice date.  The Client shall be responsible for all taxes, such as VAT, sales and use tax, gross receipts tax, withholding tax, and any similar tax, imposed on or in connection with the Services, other than Green Crossroads’ income and property taxes.

Performance of the Services or payment of invoices, in whole or in part, implies acceptance of the terms of business and of the content of the engagement letter and/or framework agreement.

If not prohibited by applicable legislation, the fees and invoices are deemed accepted if they are not contested within a period of fifteen (15) calendar days after receipt.

 

 

Limitation on Damages and Actions

 

a)     The entire liability of Green Crossroads and their respective personnel, representatives and partners under or in connection with this Agreement whether in contract, statute, tort (including, without limitation, negligence), (‘Claims’), shall at all times be limited in aggregate to an amount equal to the total amount of the fees paid by Client to Green Crossroads in relation to the concerned Services or part thereof, which gave rise to the liability, except to the extent finally judicially determined to have resulted primarily from the bad faith or intentional misconduct of Green Crossroads, or their respective personnel, representatives and partners. In all circumstances, the aggregate liability of Green Crossroads, \ their respective staff, representatives and partners for any claim whatsoever shall never exceed an amount which is proportional to the relative fault that their conduct bears to all other conduct giving rise to such claim.

 

b) In no event Green Crossroads, its agents, or subcontractors, or any of their partners or other personnel or representatives, shall be liable to the Client, whether in contract, statute, tort (including, without limitation, negligence) or otherwise for i) loss or damage incurred by the other as a result of third party claims,  or ii) incidental, special/consequential, punitive/exemplary or indirect loss, damage or expense suffered by the other such as but not limited to loss of profit, goodwill, data, business opportunity or anticipated saving (whether or not deemed to constitute a direct claim or not).

 

c) Where it appears that two or more cases of damage result from the same fault committed by Green Crossroads, they will be deemed to constitute one single liability event.

 

d) No action, regardless of form, arising under or relating to this Agreement or the Services, may be brought by either party more than one year after the cause of action has accrued, except that an action for non-payment of any invoice may be brought by a party not later than two years following the date of the last payment due to such party on any invoice hereunder.

 

 

Indemnification

 

The Client shall indemnify and hold harmless Green Crossroads, and their respective personnel, representatives and partners from all third party Claims, except to the extent finally judicially determined to have resulted primarily from the bad faith or intentional misconduct of Green Crossroads or their respective personnel.

 

 

Right to amend

 

In exceptional circumstances, Green crossroads may decide (without having a duty to do so) to amend or withdraw a report when, in its professional judgment, it is appropriate to do so, for example, when facts or circumstances, unknown at the time Green Crossroads issued the report, come to its attention. This right of amendment or withdrawal shall also apply at any time when Green Crossroads subsequently discovers omissions or inaccuracies in the report that might affect its content. In any event, Green Crossroads may only exercise the right to amend or withdraw a report after having notified the Client. Once amended or withdrawn, the original report can no longer be used by the Client. If the Client has already used the report with regard to third parties, the Client shall disclose the amendment or withdrawal of the report to the same parties and in the same manner as for the distribution of the original report.

 

 

Other Terms

 

a)    Force Majeure.  Except for the payment of money, neither party shall be liable for any delays or other non-performance resulting from circumstances or causes beyond its reasonable control, including, without limitation, acts or omissions or the failure to cooperate of the other party (including, without limitation, entities or individuals under its control, or their respective officers, directors, employees or other personnel and agents), acts or omissions or the failure to cooperate by any third party (other than Subcontractors), fire or other casualty, , epidemic (including for the avoidance of doubt, pandemic influenza attack), strike or labour dispute, , or any law, order or requirement of any governmental agency or authority.

 

b)    Independent Contractor.  Each party is an independent contractor, and neither party is, nor shall represent itself to be, an agent, partner, fiduciary, joint venture, co-owner or representative of the other. 

 

c)    Survival.  All sections herein relating to payment, licence and ownership, confidentiality, warranties, limitations of warranties and/or responsibility (including the extent of the engagement with respect to the responsibility), limitations on damages and actions, non-exclusivity, non solicitation, third parties beneficiaries (Green Crossroads entities), jurisdiction, governing law and other terms, by their nature, shall survive the termination of this Agreement.

 

d)    Notices.  All notices hereunder shall be: (i) in writing; (ii) delivered to the representatives of the parties at the addresses set forth in the Engagement Letter, proposal and/or statement of work to which these terms are attached (unless changed by either party upon notice to the other party), and; (iii) effective upon receipt.

 

e)    Assignment.  Except as provided below, neither party may assign, transfer or delegate any of the rights or obligations hereunder (including, without limitation, interests or claims relating to this engagement) without the prior written consent of the other party, such consent not to be unreasonably withheld. Neither party will directly or indirectly agree to assign nor transfer to a third party any claim against the other party arising out of this Agreement.  However Green Crossroads may assign any of its rights or obligations hereunder to any Senior advisor or partner organization.

 

f)     Waiver.  The failure of either party to insist upon strict performance of any of the provisions contained in this Agreement shall not constitute a waiver of its rights as set forth in this Agreement, at law or in equity, or a waiver of any other provisions or subsequent default by the other party of any of the terms or conditions in this Agreement.

 

g) Marketing Material.  Neither party shall use the other party’s trademarks, service marks, logos, and/or branding in external publicity material without such other party’s prior written consent, which it shall not unreasonably withhold.

 

h) Electronic Communications.   Except as instructed otherwise in writing, each party may assume that the other approves of properly addressed fax, email (including email exchanged via Internet media) and voicemail communication of both sensitive and non-sensitive documents and other communications concerning this Agreement, as well as other means of communication used or accepted by the other.

 

It is recognized that the internet is inherently insecure and that data can become corrupted, communications are not always delivered promptly (or at all), and that other methods of communication may be appropriate.  Electronic communications are also prone to contamination by viruses.  Each party will be responsible for protecting its own systems and interests and, to the fullest extent permitted by law, will not be responsible to the other on any basis (contract, tort or otherwise) for any loss, damage or omission in any way arising from the use of the Internet or from access by any Green Crossroads Entity personnel to networks, applications, electronic data or other systems of the Client Group.

 

i) Data privacy. Each party will comply with and warrants that it has complied with all applicable data protection and privacy legislation and regulations in any relevant jurisdiction (together the “Data Privacy Legislation”).

 

j)     Entire Agreement.  These terms, the Engagement Letter, proposal and/or statement of work to which these terms are attached, including any exhibits, constitute the entire agreement between Green Crossroads and the Client with respect to this engagement and supersede all other oral and written representations, understandings or agreements relating to this engagement, and may not be amended except by a written agreement signed by both parties. The printed terms of any purchase order and other communications issued by the Client in connection with the Services will not apply unless accepted in writing by Green Crossroads. No variation to the Agreement shall be effective unless it is documented in writing and signed by authorized representatives of both parties, provided, however, that the scope of Services set forth in the Engagement Letter may be changed by agreement of the parties in writing, including by e-mail .  If Green Crossroads has already started work (e.g., by gathering information, project planning or giving initial advice) then the Client agrees that this Agreement is effective as of the start of such work. Performance of the Services or payment of invoices, in whole or in part, implies acceptance of the general business terms and of the content of the Engagement Letter.

 

k)    Governing Law and Jurisdiction.  This Agreement and all matters relating to the engagement whether in contract, statute, tort (including, without limitation, negligence) or otherwise, shall be governed by, and construed in accordance with, the laws of Belgium (without giving effect to the choice of law principles thereof) and shall be subject to the exclusive jurisdiction of the Courts of Brussels.

 

l)     No Third Party Rights.  A person or entity that is not a party to this Agreement has no right to enforce any term of this Agreement except for any other provision hereof to the contrary. Green Crossroads subcontractors, associates or partners are intended third-party beneficiaries of these terms.

m)   Severability.  If any provision of this Agreement is found by a court of competent jurisdiction or arbitrators to be unenforceable, such provision shall not affect the other provisions, but such unenforceable provision shall be deemed modified to the extent necessary to render it enforceable, preserving to the fullest extent permissible the intent of the parties set forth in this Agreement.

 

o) Validity of the engagement offer.   The offer contained in the Engagement Letter may be accepted  by written confirmation that the terms are accepted as received within 30 days from the date of issue. If no explicit confirmation is received within this timeframe then the content of the engagement letter, as well as these terms and conditions will be considered accepted.

 

q)    Supersedence.   In case of contradiction between the Letter of Engagement and the present general business terms, the Letter of Engagement shall prevail if this is the most recent version. The conditions included in these general business terms and in the Agreement apply to the exclusion of any general or specific terms and conditions of the Client.