General Conditions of Sale

 

1. Introduction

1.1 Scope - These General Conditions of Sale ("GCS") apply exclusively and definitively to all Services for which the Customer has engaged DefenseWise SRL and are deemed read, understood and accepted without reservation by the Customer, unless the Customer has indicated in writing to DefenseWise SRL its total or partial rejection of these GCS within seven days of their receipt.

1.2 Term - The Contract commences on the date of signature of the engagement letter. It shall continue until terminated in accordance with the terms of the Contract.

1.3 Interpretation - The following terms and expressions used in the Contract shall have the following meanings:  

Assets - DefenseWise SRL's pre-existing assets, materials, documents, software, skills, know-how, processes, methods or other intellectual property created, invented or developed by DefenseWise SRL, as well as any modification, derivative or improvement thereof.​

Appendix(es) - Any document attached to or referenced in the Contract, which forms an integral part of the agreement between the Parties. 

Customer - The other Party with whom DefenseWise SRL enters into a Contract.

Contract - The agreement between the Customer and DefenseWise SRL, comprising the engagement letter and any Annexes, including the GCS. 

Declaration of Privacy Protection - The DefenseWise SRL declaration of privacy protection available on its website (www.defense-wise.com), updated regularly, which describes the purposes of collection and use of Personal Data by DefenseWise SRL and provides information on the rights of individuals.

Personal Data - has the meaning given in the GDPR.

Data Protection Legislation - the General Data Protection Regulation (EU) 2016/679 ("GDPR"), including national legislation taken in implementation of the GDPR, such as the Belgian law of July 30, 2018 on the protection of individuals with regard to the processing of personal data, as amended from time to time.

Deliverable - The result(s) of the Services.

Parties - Refers collectively to the Customer and DefenseWise SRL (each individually referred to as a "Party").

Services - the services to be provided by DefenseWise SRL, as defined in the Agreement.

2. Services

2.1 Services - DefenseWise SRL undertakes to use reasonable skill and care in the provision of the Services and the preparation of any Deliverables, which shall be considered an obligation of means. DefenseWise SRL expressly disclaims any express or implied warranty of result with respect to the Services provided. The Customer confirms that the scope of the Services specified in the Contract (and more particularly in any Order Form) is sufficient for its needs. For all aspects not included in the scope of the Services, it is the Customer's responsibility to seek independent expert advice. The Services are provided exclusively to the Customer for the purposes described in the Contract or in the relevant Deliverable. The Service shall be deemed accepted by DefenseWise SRL only upon and in accordance with DefenseWise SRL's written confirmation.

2.2 Deliverables - Customer may not disclose any Deliverable to any third party except (i) as set forth in the Agreement, (ii) with the prior written consent of DefenseWise SRL, (iii) to the extent required by law or regulation, or (iv) to its legal counsel or affiliates, provided that Customer ensures that such parties acknowledge that DefenseWise SRL will not accept any liability or obligation to them and that no further disclosure may be made by such parties. The Customer agrees to be liable to DefenseWise SRL for any damages resulting from a breach of this clause by the Customer or any of the mentioned receiving parties, as if it constituted a breach on its part.

2.3 Disclaimer - DefenseWise SRL expressly disclaims any liability, obligation or duty of care to anyone other than the Customer in connection with the Services. The Customer agrees to indemnify and hold harmless DefenseWise SRL from any claim, damage or liability (including legal fees) arising from any third party in connection with the Services provided.

2.4 Modifications - Either Party may request a modification of the Services or the Contract. A modification will only be effective when agreed in writing by means of a revised and signed Contract or a new Purchase Order signed and attached to the Contract.

2.5 Responsibilities - DefenseWise SRL shall perform the Services in accordance with good ethical practice, taking into account the relevant laws and regulations applicable during the performance of the Agreement. DefenseWise SRL shall not be liable for the effects of any future changes - with possible retroactive effects - to such laws and regulations, nor shall DefenseWise SRL be held liable for the consequences of any deficiency, fault or violation committed prior to DefenseWise SRL's intervention.

2.6 Scope of Services - In performing the Services and unless otherwise agreed, DefenseWise SRL does not undertake to detect or accept responsibility for the detection of fraud or other wrongdoing. Unless otherwise agreed, DefenseWise SRL will not verify the accuracy or completeness of any information provided by Customer, nor will it verify the reliability of any deeds, contracts, inventories, invoices or other supporting documents that Customer has entrusted or made available to DefenseWise SRL.

2.7 Oral advice and non-final Deliverables - The Customer may only rely on final written Deliverables and not on oral advice, draft Deliverables or other information. At the Customer's request, DefenseWise SRL will confirm whether oral advice is final and can be taken into account by the Customer.

2.8 Delivery Terms - The Services shall be performed in accordance with the Service Schedule confirmed by DefenseWise SRL, unless otherwise agreed in writing between the Parties thereafter. The Services shall be deemed compliant if they meet the objectives and Deliverables set forth in said confirmed service schedule. Delivery dates are provided for information purposes only and are never legally binding on DefenseWise SRL, unless otherwise agreed in writing by DefenseWise SRL. In the absence of firm delivery dates, delays in delivery do not entitle the Customer to refuse to accept the Services, to terminate or cancel the order for Services, or to claim damages.  

3. Customer's responsibilities

3.1 Information - The Customer agrees to provide DefenseWise SRL with accurate and complete information in a timely manner. It must also ensure that it has obtained the necessary rights, consents and authorizations to disclose to DefenseWise SRL any information, material or software from third parties in connection with the Contract.

3.2 Interdependence - If DefenseWise SRL's performance is dependent upon the Customer's fulfillment of certain obligations under the Agreement (for example, assumptions), DefenseWise SRL shall not be liable for any losses resulting from the Customer's failure to fulfill such obligations.

4. Fees

4.1 Payment for Services - Customer agrees to pay DefenseWise SRL for its Services. Any estimate provided by DefenseWise SRL to the Customer is indicative and non-binding.

4.2 Calculation of fees - DefenseWise SRL's fees are based not only on the time spent on the Services and/or Deliverables, but also on factors such as the complexity and urgency of the work, the inherent risks, and the techniques and skills required. Fees may include travel time devoted to the Services, which cannot be productively used for other purposes.

4.3 Hourly Rate - DefenseWise SRL's hourly rates may be revised periodically based on the rate of inflation and may be requested by Customer at any time. The rates for Services are those in effect at the time DefenseWise SRL issues its offer, but DefenseWise SRL reserves the right, at its sole discretion, to modify the rates for its Services for any unconfirmed and/or future transactions.

4.4 Expenses - The Customer agrees to reimburse DefenseWise SRL for reasonable expenses incurred in connection with the Services.

4.5 Taxes - The Customer shall also pay all taxes, including VAT, due in connection with the Services and/or Deliverables. The Customer undertakes to pay the full amount of any invoice, irrespective of any deductions required by law.

4.6 Down Payment - Upon commencement of the Contract, DefenseWise SRL may invoice a down payment for Services and/or Deliverables.

4.7 Terms of payment - Invoices are to be paid within thirty (30) days of the invoice date, unless otherwise specified in writing by DefenseWise SRL. Services must be paid by bank transfer to the bank account designated by DefenseWise SRL. Invoices unpaid after the due date will automatically, without notice, incur late payment interest at the legal rate determined by the Belgian law of August 2, 2002, until the debt is settled. In addition, DefenseWise SRL will be entitled to a lump-sum compensation of fifteen percent (15%) of the amount due, without prejudice to the application of article 6§2 of the Belgian law of August 2, 2002. Regardless of these provisions, DefenseWise SRL reserves the right to claim compensation for the loss actually suffered and to suspend the execution and/or delivery of any outstanding Customer order until it receives sufficient guarantees of the Customer's solvency.

4.8 Detailed invoice - The Customer may request a breakdown of the Services and/or Deliverables invoiced, unless a fixed price has been agreed. If such a fixed price has been established for several years, an annual indexation percentage will be applied, based on the inflation rate.

4.9 Purchase Order - Payment of DefenseWise SRL's fees shall not be contingent upon the issuance of a purchase order, but shall be subject solely to the terms of this Agreement. If a purchase order is required in accordance with the Customer's internal procedures, the Customer shall be solely responsible for the timely issuance of the purchase order.

5. Confidentiality

5.1 Confidential Information - DefenseWise SRL and the Customer agree to treat confidential information relating to the Services as confidential. The Party receiving the information undertakes not to disclose it, except in the following cases: (i) if permitted by the Agreement, (ii) if necessary for the performance of the Services or the Agreement, (iii) if requested by the disclosing Party, or (iv) if required by law or regulation.

5.2 Exceptions - Confidential Information does not include information which (i) was already known to the Receiving Party prior to disclosure, (ii) has been independently developed by the Receiving Party without use of or reference to Confidential Information, or (iii) becomes public without breach of the Agreement or is lawfully obtained from a third party.

5.3 Performing Services for Others - Customer agrees that DefenseWise SRL may provide services to Customer's competitors or other parties whose interests may conflict with those of Customer, so long as DefenseWise SRL does not disclose Customer's Confidential Information and complies with customary ethical obligations.  

5.4 Documents - DefenseWise SRL may retain copies of all documents relevant to the Services, including those provided by or on behalf of the Customer.

6. Intellectual property  

6.1 The Customer remains the owner of all intellectual property rights relating to the assets it provides to DefenseWise SRL in connection with the provision of the Services.

6.2 DefenseWise SRL retains ownership of all intellectual property rights to its Assets, Deliverables and any other products developed in the course of providing the Services. However, Customer is granted a non-exclusive, non-transferable license, limited to internal use (unless otherwise agreed between the Parties), to use DefenseWise SRL's Assets incorporated into the Deliverables as well as the Deliverables themselves. DefenseWise SRL's Services contain and/or are marketed under names, logos and distinctive signs that constitute trademarks or are protected by intellectual property rights belonging to DefenseWise SRL and/or third parties. The use, reproduction or representation in any form whatsoever, in whole or in part, of these names, logos or distinctive signs is strictly prohibited without the prior written consent of DefenseWise SRL and/or these third parties. 

7. Data protection

7.1 Personal Data - Where Personal Data is processed as part of the Services, the Customer and DefenseWise SRL undertake to comply with Data Protection Legislation.

7.2 Declaration of Privacy Protection - DefenseWise SRL's Declaration of Privacy Protection, available on its website (www.defense-wise.com), describes how it processes Personal Data in the course of its business, the recipients to whom it transfers such data, the purposes of such processing, the legal basis, the retention period, as well as the rights of the data subjects vis-à-vis DefenseWise SRL and how to exercise such rights. If the Customer is a legal entity, it confirms to DefenseWise SRL that (i) the data is accurate, correct and complete, and (ii) the data subjects have been duly informed of the processing of their Personal Data by DefenseWise SRL, as described in the Declaration of Privacy Protection, and of their rights in relation to such processing. For each transfer of Personal Data to DefenseWise SRL in the context of their business relationship, the Customer confirms that it has the legal basis for such transfer and that it has processed the data in compliance with Data Protection Legislation.​ Declaration of Privacy Protection ​

8. Liability

8.1 Specific types of loss - DefenseWise SRL shall not be liable for (i) loss or corruption of data in Customer's systems, (ii) loss of profits, goodwill, business opportunities, anticipated savings or benefits, or (iii) indirect, punitive, special, exemplary or consequential loss or damage.​

8.2 Limitation of Liability - DefenseWise SRL's total liability (including interest) for any malpractice or errors committed under the Contract is limited to twice the amount of its fee for the relevant Services giving rise to liability.

8.3 Unlimited Liability - Nothing in the Agreement shall limit a Party's liability for (i) death or personal injury caused by that Party's negligence, (ii) that Party's fraud or willful misconduct, or (iii) any other situation which cannot be limited or excluded by law.

8.4 Proportionality - In no event shall DefenseWise SRL be liable for more than the Customer's share of any loss, damage or liability that is directly and exclusively caused by DefenseWise SRL in connection with the Services giving rise to a claim under the Agreement.

8.5 Warranty and Limited Remedy - DefenseWise SRL warrants only that the Services provided hereunder will conform to the agreed descriptions and/or Deliverables and will be undertaken using DefenseWise SRL's best efforts and professional knowledge. Customer's exclusive remedy and DefenseWise SRL's sole liability for any claim of any nature whatsoever, is expressly limited to either the reperformance within a reasonable time of the Services shown not to conform to the warranty or, at DefenseWise SRL's option, a refund in cash or free services not to exceed the price actually paid by Customer for the specific Services shown not to conform to the warranty. Any such reiteration or refund is subject to the Customer notifying DefenseWise SRL that the Services do not conform to the warranty within thirty days of the date of delivery of the Services. If the Customer fails to give such prior notice within the time limit specified, the Customer waives any claim hereunder with respect to such Services.

9. Termination

9.1 Termination with immediate effect - Either Party may terminate the Agreement immediately by sending notice by registered letter to the other Party if (i) the latter is in material breach of the Agreement and fails to remedy such breach within fourteen (14) business days, (ii) the latter is or appears to be unable to pay its debts or becomes insolvent, or (iii) the performance of the Agreement (including the application of any tariff arrangement) may breach any legal or regulatory requirement.

9.2 Termination with notice - Either Party may terminate the Contract by giving thirty days' notice by registered letter.​

9.3 Fees due - The Customer agrees to pay DefenseWise SRL for all Services provided up to the date of termination. Where a fixed fee has been agreed for Services, Customer agrees to pay DefenseWise SRL for Services performed, on a time basis, according to DefenseWise SRL's current hourly rates, up to the amount of the fixed fee.

10. Dispute resolution

10.1 Dispute resolution - In the event of a dispute relating to the Contract, the Parties undertake to attempt to resolve it through discussions and negotiations in good faith before commencing any legal proceedings.

10.2 Applicable law and jurisdiction - The Contract and any dispute arising therefrom, whether contractual or not, shall be governed by Belgian law without regard to its conflict of law rules and shall fall under the exclusive jurisdiction of the courts of Liège, where the Customer expressly agrees to elect domicile for the purposes of these transactions with DefenseWise SRL. The application of the United Nations Convention on Contracts for the International Sale of Goods, done at Vienna on April 11, 1980, is hereby specifically excluded.​

10.3 Limitation period - Any claim must be lodged within one year of the date on which the claimant becomes aware, or ought reasonably to have become aware, of the facts giving rise to the claim.

11. General  

11.1 Force Majeure - DefenseWise SRL shall not be liable for failure to perform its obligations due to circumstances beyond its reasonable and foreseeable control (a "Force Majeure Event"), including, but not limited to, war, natural disasters, terrorist attacks, disease, epidemics and pandemics. If an event does not qualify as a Force Majeure Event, but DefenseWise SRL can demonstrate that (i) the continued performance of its contractual obligations has become excessively unfair or prejudicial due to an event beyond its reasonable and foreseeable control and (ii) such event or its consequences could not reasonably have been avoided, the Parties shall endeavor to agree, within a reasonable period of time from the invocation of the clause, on alternative contractual terms to remedy such unfairness or prejudice.​

11.2 Entire Agreement - The Agreement constitutes the entire agreement between the Parties with respect to the Services. It supersedes any prior agreement, representation or discussion.

11.3 Assignment - Neither Party may assign, transfer or delegate its rights or obligations, claims or proceeds of claims arising under the Contract without the prior written consent of the other Party. Any assignment made without such consent shall be deemed null and void. However, DefenseWise SRL may transfer its rights and obligations under this Agreement to a successor or assignee of all or part of its business.

11.4 Invalidity - If any provision of the Contract is held to be invalid or unenforceable, in whole or in part, such provision (or the relevant part, as the case may be) shall be deemed not to form part of the Contract. In any event, the validity and enforceability of the other provisions of the Contract shall not be affected.

11.5 Survival - Provisions of the Agreement which by their nature are intended to survive termination or expiration of the Agreement shall continue to apply and remain in full force and effect.

The version of the present DefenseWise terms and conditions of sale is that of October 2024.