element61 undertakes the utmost to provide the Services and Solutions mentioned in this order form to the benefit of the Customer and respecting the terms and conditions mentioned.
Unless specifically stated otherwise element61 grants the Customer a non-exclusive and non-transferrable right to use the results of, as well as any Intellectual Property created with, the Services provided. This right is limited to the specific developments that have been performed at the request of the Customer.
In the case Customer purchases Solutions, the software-code is protected by copyright law and international treaties. Unauthorized reproduction or distribution of these Solutions, or any portion of it, may result in severe civil and criminal penalties, and will be prosecuted to the maximum extent possible under the law.
Permission is granted, to any Customer purchasing and licensing a copy of these Solutions, to deal in the Solution without restriction, including - without limitation - the rights to use, copy, modify, merge and publish the Solution. The Customer purchasing and licensing a copy of this Solution will however not copy and use the Solution for any other purposes than the internal use in the context of the Out-of-the-Box Solutions and Acceleration Kits, unless agreed otherwise with element61.
The Customer will - in particular - make sure that the Solution is not accessed and copied by third-party consulting or software companies and their personnel, nor any subcontractors and/or freelancers employed directly by the Customer. Failure to do so will be considered a grave error. Third-party suppliers are permitted to use the Solution’s components solely within the context of the Customer's specific project. It is expressly prohibited for all above third parties to copy, distribute, or utilize these components for any other Customers or projects. Customer will make those third parties sign the necessary legal terms to guarantee the correct use of the Intellectual Property according to this clause. Any unauthorized use will be considered a breach of Intellectual Property Rights held by element61.
Parties must keep confidential all information mutually exchanged in context of this Agreement. In addition, information exchanged between parties, may only be used in context of this Agreement. Parties may not disclose confidential information to third parties, unless written approval by the other Party. The obligations towards confidentiality remain until 1 year after the end of the last Services or Solution updates provided, regardless of the reason for the termination of this Agreement.
Excluded from this confidentiality obligation is all information that:
Parties commit to complying with all relevant laws and regulations that prohibit, prevent, and criminalize acts of corruption and related criminal or unlawful acts. Parties shall comply with these laws and regulations in all their operations and relationships, whether or not they are related to this Agreement and the Services or Solutions provided under this Agreement, regardless of the form in which the acts occur and to whatever extent.
Parties shall pass on these obligations to their employees and directors, and shall ensure that third parties involved in the execution of this Agreement are also contractually bound by these obligations.
The Customer acknowledges and agrees that natural persons associated with element61 bear no liability whatsoever in connection with assignments provided to element61. As such, the Customer is obliged to ensure that no claim or demand of any kind is submitted or enforced against anyone other than the legal entity element61 NV/SA itself. This limitation of liability does not affect the potential liability of element61 as a legal entity, as determined under this Agreement or applicable law.
All Services specified will be performed remotely or at the Customer’s site. Where a particular location is necessary for the satisfactory performance of (part of) the Services, both parties will agree as-such upfront. In the event (part of) the Services are to be delivered at Customer’s site, the Customer will provide a desk and parking facilities to the consultant, free of charge.
In case of work abroad, element61 will charge the following additional costs:
element61 will invoice the fees mentioned in this Order Form to the Customer (21% VAT will be applied where relevant).
A normal consultancy day amounts to 8 working hours. A consultancy day will be invoiced by the lowest amount of half a day, unless specifically specified otherwise. Overtime Services are invoiced at a supercharge of 100%. All invoices regarding this order form are payable within 30 days from date of invoice, unless specifically mentioned otherwise. After expiry date of the agreed payment period, element61 has the right, legally and without prior notice of default, to charge additional interest on late payments at the statutory interest rate of 7 % on an annual basis and any costs incurred to be able to collect.
The daily rates mentioned in the “Service Details” section will not be changed, unless with explicit written approval of both the Customer and element61.
There are two exceptions to this clause:
With the process of invoicing, a cost for administration, as well as for payment/collection is associated for both Parties. element61 therefore has the right to bundle Services, delivered over several weeks/months, into one periodical invoice, in case the cumulative amount of the Services provided is less than € 1.500. This typically does not occur during project implementation, but might occur for punctual support Services or small change requests after go-live.
Services or part of the Services mentioned in the terms and conditions of this Order Form, may be cancelled by the Customer 10 working days before the actual delivery date of the Service. The Customer agrees that Services cancelled by the Customer within 10 working days of the actual delivery date(s), are assumed to be delivered and as such are part of the invoice. Please note that this cancellation procedure does not apply to any eventual Third Party software, element61 Service Desk or element61 Solution subscriptions contracted.
The Customer is aware that planning resources may involve lead times of up to 6 weeks upon commitment of an assignment. In assigning our consultants to projects at our Customers, we apply a first-come-first-served principle, based on fully signed contracts and mutually confirmed planning.
The Customer agrees to refrain from – neither directly, nor indirectly, such as via a third party – taking any action to solicit, recruit and/or hire element61 employees or contractors that are performing Services in the context of this Agreement.
This is applicable during the term of this Agreement and for a period of one year after the last Services or Solution updates have been provided to the Customer and for all employees or contractors/freelancers which have been made available by element61 to the Customer. Non-compliance with this clause is considered as a serious fault or grave breach of this Agreement by the Customer.
In the event of non-compliance with this clause the Customer will need to compensate element61 by paying a sum of € 45.000 per infraction, which will be invoiced within 30 days from the time the Customer enters into Agreement with element61 staff through an employment contract with the respective person or his company in case of a one-person business or BV/SPRL. This compensation is considered by both parties as a reasonable fee for recruitment, onboarding and training Analytics experts.
This Agreement is governed by and shall be construed and interpreted in accordance with the Laws of Belgium. The courts of Ghent, Belgium shall have exclusive jurisdiction of any dispute arising out of or related to this Agreement.