The following terms in the Agreement, when written with capital initial letters, either in singular or plural, shall have the meanings as set out in this Article 1. - .
1.1. “Agreement” means the contractual documents that set forth the rights and duties of the Parties, including the present Standard Terms and Conditions, as well as, if relevant, the Request for Proposal (RFP) of the Customer, the Proposal of the Supplier and/or the Work Order.
1.2. “Business Day” means any calendar day from Monday through Friday, but excluding the Supplier’s Holidays and public holidays in Belgium.
1.3. “Data Protection Law” means any and all law, regulation and any commonly accepted international standard related to the protection of privacy and/or the processing of personal data (including, in Belgium, the Belgian Act of 8 December 1992 on the protection of privacy in relation to the processing of personal data).
1.4. “Customer” means the beneficiary of the Custom Development, as identified in the relevant Work Order.
1.5. “Deliverable” means any and all software, hardware, services and/or any other materials (such as software development, products, firmware, studies, reports, drawings, specifications, program, tools, network architecture, documentation and recommendations), or a component thereof, whether owned by the Supplier or by a third party, to be provided by the Supplier under the Agreement.
1.6. “Effective Date” means the date on which the Agreement takes effect as set out in the relevant Work Order.
1.7. “Error” (or “Defect”) means any reproducible defect or malfunction of a Deliverable in design, material, manufacturing, workmanship or otherwise resulting in a disruption of its operational use.
1.8. “Force Majeure” means an occurrence or circumstance, other than financial, beyond a Party’s control, which was unforeseeable on the Effective Date and which such Party cannot reasonably avoid.
1.9. “Intellectual Property Rights” means (a) copyright, patents, database rights and rights in trademarks, designs, know-how and trade secrets (whether registered or unregistered); (b) applications for registration, and the right to apply for registration, for any of these rights; and (c) all other intellectual property rights and equivalent or similar forms of protection existing anywhere in the world.
1.11. “Custom Development” covers all activities as described in the Work Order or any other contractual document included in the Agreement that the Supplier must perform to supply the Deliverables, including (without limitation) specific developments applicable to the Program, project management, quality management, detailed functional design, detailed technical design, product configuration, delivery and installation of the Deliverables, delivery of documentation, migration, data conversion (including tool development), training, integration testing and all required assistance to allow the Customer to perform acceptance testing and to put the Deliverables into operation.
1.12. “Program” means: DICOM server for medical imaging, known under name of ORTHANC (more info on www.orthanc-server.com), with documentation available on the website.
2.1. This Agreement sets out the terms and conditions under and subject to which the Supplier shall provide to the Customer Custom Developments on the Program.
2.2. The Supplier agrees to perform the Agreement in a professional manner with the skill and care and in accordance with the commonly accepted state of the art and industry practices.
2.3. The Customer shall, at no cost, cooperate with the Supplier with respect to the provision of the Custom Developments. The Customer shall, without limitation, provide the relevant information (among other, on security), make available the dedicated office and technical environment (in accordance with applicable law) and shall ensure that its staff shall be appropriately trained and qualified in accordance with the commonly accepted state of the art and industry practices.
2.4. Unless otherwise provided in writing in the Agreement, the Customer acknowledges that the duties of the Supplier shall be considered as obligations of means (“obligations de moyen”).
2.5. The Supplier reserves the right to determine which staff members will be appointed to the all or part of the Custom Development and it may replace them at any time with other staff members with similar skills and competences. To the extent possible, the Supplier will undertake reasonable efforts to comply with any Customer request to involve or exclude specific staff members.
2.6. In case of loss or corruption of the Customer data following the provision of the Custom Development, the sole obligation of the Supplier (and the sole remedy of the Customer) is the restoration of the most recent available back-up provided by the Customer. Under no circumstances is the Supplier obliged to input or reconstruct the Customer data.
2.7. The Customer acknowledges and accepts that any postponement of the Custom Developments requested by the Customer shall only occur in accordance with the present Agreement and that the Supplier will be entitled to charge waiting time for its personnel and/or any other damages resulting from such postponement.
3.1. In consideration for the supply of the Deliverables and the provision of the Custom Development by the Supplier in accordance with the terms of the Agreement, the Customer shall pay to the Supplier a price as set forth in the relevant Work Order.
3.2. Unless expressly provided otherwise in the Agreement, all (unit or global) prices payable by the Customer to the Supplier under the Agreement shall include all costs, charges and taxes generally imposed on (or relating to) the Custom Development and Deliverables, other than value added taxes (VAT).
3.3. Any payment due but not received by the Supplier on due date shall incur interest at the rate establish in accordance with the Act of 2 August 2002 on combating late payment in commercial transactions.
3.4. Unless expressly provided otherwise in the Agreement, all (unit or global) prices and charges payable by the Customer to the Supplier under the Agreement shall be set out, invoiced and paid in euro (EUR).
3.5. The Supplier shall issue invoices according to the invoicing plan as defined in the relevant Work Order.
3.6. Any invoice shall be paid within thirty (30) calendar days following the date of issuance.
3.7. In all cases where the Customer disputes the accuracy, relevancy or applicability of an invoice (in part or in whole), the Customer shall notify the Supplier in writing as soon as reasonably practicable of the Customer’s basis for dispute.
3.8. The Parties agree that the non-payment (either partial or total) of an invoice shall be considered as a material breach pursuant to Article 10. - of the present Agreement and, without prejudice to any other remedies in Law, the Supplier is entitled to suspend the provision of the Custom Development until payment is received in full.
4.1. Unless agreed otherwise in the relevant Work Order, the acceptance process applicable to the Deliverables shall be performed in accordance with the present Article.
4.2. Upon delivery of a completed Deliverable, the Customer shall have ninety (90) calendar days to accept or reject the Deliverable.
4.3. The acceptance of the Deliverables shall be confirmed by the Customer at the end of the test period agreed by the Parties, provided that the Deliverables is conform with the specifications described in the relevant Work Order.
4.4. Should acceptance be rejected, the Parties shall agree upon a period for the Supplier to correct the Deliverables at no additional cost so that these strictly comply with the specifications and all other terms of the Agreement and to provide the Customer with compliant Deliverables.
5.1. The present Article shall apply should the Customer provide or make available personal data to the Supplier in connection with this Agreement, without prejudice to any provisions of Article 6. - (Confidentiality). Where used in the present Article, the expressions “personal data”, “process”, “controller” and “processor” shall bear their respective meanings given in the Belgian Act of 8 December 1992 on privacy protection in relation to the processing of personal data and all other Data Protection Law.
5.2. The Supplier shall act as a processor, on behalf of the Customer (acting as a controller) and, in this context, the Supplier shall not process any personal data for purposes other than that which is strictly necessary for the performance of its obligations under the Agreement in accordance with the Customer instructions.
5.3. The personal data shall remain the Customer’s property and shall be returned to the Customer as soon as it is no longer required for the performance of the Supplier’s obligations under the Agreement.
5.4. The Supplier shall treat the personal data as strictly confidential in accordance with the terms of Article 6. - (Confidentiality) and shall take necessary technical and organizational measures to protect the personal data from any form of unlawful or unauthorized processing.
5.5. In the case of transfer of personal data outside the European Economic Area to a country which does not ensure an adequate level of data protection, Standard Contractual Clauses of the European Commission for the transfer personal data to processors established in third countries (2010/87/EU), or any other process prescribed by applicable Law, shall be executed.
6.1. “Confidential Information” means any information of any nature whatsoever (including, but not limited to, all data, trade secrets, know-how, business information, ideas, discoveries, techniques, computer programs, draft and signed contracts that a Party (the Disclosing Party) discloses to the other Party (the Recipient Party) or to which the Recipient Party obtains access and that relates to the current or future products, services, clients, business and/or organization of the Disclosing Party and/or Disclosing Party’s Affiliates.
6.2. Confidential Information shall not include information that the Recipient Party can prove:
(i) is at the time of disclosure by the Disclosing Party, or thereafter becomes, in the public domain without violation of this Agreement ; or
(i) is lawfully obtained from a third party that has lawfully obtained such information and who is not in breach of any confidentiality obligation ; or
(ii) was already known by and on record at the Recipient Party prior to disclosure by the Disclosing Party or prior to access by the Recipient Party ; or
(iii) is developed by the Recipient Party completely independently of any disclosure by the Disclosing Party or of any access by the Recipient Party ;
6.3. The Recipient Party shall hold all Confidential Information in strict confidence, and specifically, shall: - Use Confidential Information only for the purposes of the performance of its obligations under the Agreement at the exclusion of any other purpose; - Restrict disclosure of or access to Confidential Information to its representatives, subcontractor, advisors, auditors, and affiliate who have a strict need to know such for the purposes of the performance of the Agreement, and not divulge Confidential Information to any other third parties or give any other third party access to Confidential Information without the Disclosing Party’s prior written consent; - Notify the Disclosing Party immediately upon suspecting or becoming aware of any unauthorized disclosure, access or use of Confidential Information and take all reasonable measures necessary to prevent any (further) unauthorized disclosure, access or use thereof;
6.4. Should the Recipient Party be required to disclose Confidential Information pursuant to a statute, a regulation or the order of a court of competent jurisdiction or a public authority (“Legislative, Administrative or Judicial Action”), the Recipient Party shall immediately after gaining knowledge or receiving notice of such Legislative, Administrative or Judicial Action, notify the Disclosing Party thereof in writing and give the Disclosing Party the opportunity to seek any legal remedies so as to maintain such Confidential Information in confidence;
6.5. The obligations and restrictions set forth in this shall be in force for the term of the Agreement and shall remain in effect after expiration or termination of the Agreement for any reason whatsoever.
7.1. Without prejudice to Article 7.2, the Supplier’s liability for a failure to comply with the present Agreement is limited to compensation of proven damages, limited to the amounts paid by the Customer in accordance with the corresponding Work Order.
7.2. The Supplier shall not be liable for any indirect or consequential loss (including, without limitation, lost revenues or profits, loss of business, loss of data or loss of any benefit), whether in contract or in tort, regardless the Supplier was advised or had any reason to know the possibility thereof.
7.3. Nothing in this Agreement shall limit or exclude any liability for willful misconduct, for fraud or for death or personal injury as a result of a Party's negligence, or otherwise to the extent that such limitation or exclusion is not permitted by law.
8.1. The Customer can at any time up until acceptance demand changes and additions (not included in the scope of the Agreement, and, in particular, RFP/Work Order/Annex) to the Deliverables which the Supplier is to provide under the Agreement as it sees fit and having due regard for the implications thereof for the Supplier.
8.2. If a change entails an increase or reduction in cost and/or the postponement of a deadline, the Supplier shall be under a duty to point this out to the Customer immediately following receipt of the Customer's change request and submit a corresponding revised tender. Should a cost increase/reduction be agreed upon by the parties, the change shall be made on the basis of a written addendum to the Agreement stipulating the additional costs, or the allowance for the reduced costs, as well as any modification in the time schedule.
9.1. The Supplier and its licensors retain all rights and title in and ownership of the Deliverables provided in accordance with the present Agreement.
9.2. The Customer acknowledges and agrees that the components of Program subject to Custom Developments are either Open Source Software, as described in Annex 1, either materials owned by the Supplier or its licensors.
9.3. Unless provided otherwise in the relevant Word Order or agreed in writing by the Parties, the Deliverables provided under the present Agreement shall not be considered as Open Source Software.
9.4. Regarding the Deliverables provided in accordance with the present Agreement, the Supplier shall grant to the Customer, who accepts, a non-exclusive, non-transferable and limited license under all Intellectual Property Rights (including, without limitation, any copyright, right related to copyright and patent) to use the Deliverables. This license shall be granted for the whole world, as from the date of acceptance of the Deliverable.
9.5. Except as provided otherwise in the Work Order, the Customer may not make additional copies of the Deliverables (except if they are strictly necessary for back up purposes) or modify, adapt, translate, decompile, disassemble, reverse engineer or otherwise change the Deliverables in any way whatsoever.
9.6. In the event that a Deliverable becomes, in whole or in part the subject of any claim, action, suit or proceeding made by a third party arising from actual or alleged infringement, misappropriation or other violation of any intellectual property right or contractual right of a third party as a result of the use of such Deliverable by the Customer in accordance with the Agreement, the Supplier shall defend the Customer or assist and intervene on behalf of the Customer in the Customer’s defense and shall, at the Supplier’s option :
- secure for the Customer the right to continue using the Deliverable or the infringing part thereof under the same conditions as those provided for in the Agreement; or - modify or amend the Deliverable or the infringing part thereof such that the same becomes non-infringing, while on providing the same functions; or - replace the Deliverable or the infringing part thereof by a non-infringing Deliverable of equivalent capability, providing the same functions; or - if none of the abovementioned solutions is possible on commercially reasonable terms, take back the Deliverable or the infringing part thereof and refund such proportion of the fees paid by the Customer for the Deliverable as the Parties may agree having regard to the length of time that the Customer has had use of the Deliverable.
9.7. The Customer shall give immediate notice to the Supplier of any claim brought against the Customer with regard to the Deliverables. The Customer shall not make any prejudicial statements or settlement offers without the Supplier’s prior written consent and shall co-operate with the Supplier in the defense or settlement of the claim as reasonably requested by the Supplier.
9.8. The Supplier shall indemnify, defend and hold harmless the Customer, both during and after termination of the Agreement, from and against any and all damages, losses, expenses and costs awarded by a Court, to the extent such damages, losses, expenses, costs and liabilities arise out of or relate to any actual or alleged infringement, misappropriation or other violation of any intellectual property right or contractual right of a third party as a result of the provision, receipt and/or use of the Deliverables to or by the Customer under the Agreement and/or as a result of the rights granted to the Customer under the Agreement.
10.1. This Agreement shall take effect as from the date of signature (the “Effective Date”) for the duration mentioned in the relevant Work Order (or until the end of the Warranty Period granted on Custom Developments), unless terminated earlier in accordance with the terms of this Agreement.
10.2. Without prejudice to all other rights and remedies available by law or under the Agreement, any Party may terminate the Agreement effective immediately as from the date of receipt by the other Party Supplier of the notice of termination sent via registered mail or delivered by a reputable courier and without compensation, in the event one or more of the following circumstances occurs:
- a breach by the Party that is material and relates to its obligations under this Agreement, where such breach is not susceptible to being cured or has not been cured within 30 days after written notice; and/or - to the extent permitted by law, the Party becomes insolvent ; and/or - if the license agreement or any additional services agreement concluded between the Supplier and its licensors are terminated (no matter the cause).
Neither Party shall, during the term of the Agreement and for a period of six (6) months thereafter, directly solicit any of the other Party’s Representatives who have been involved in the signature or performance of the Agreement without the other Party’s prior written consent.
Where there is any conflict or inconsistency between the terms of any document included in this Agreement (the present Terms and Conditions, Annexes, RFP, Proposal, Work Orders or other document referred to herein), the documents shall take precedence in the following decreasing order of priority: 1. Work Order and its relevant Annexes
2. The present Standard Terms and Conditions and the relevant Annexes
3. If applicable, RFP of the Customer
4. If applicable, Proposal of the Supplier
13.1. The Parties shall endeavor to resolve any dispute or claim arising out of or relating to the Agreement through good faith negotiations. Should a dispute or claim arise, the management representatives of the Customer and the Supplier, together with any procurement representative(s), shall attempt to resolve the matter within seven (7) calendar days of the matter being referred to them or such other period agreed upon by the parties. If the matter is not resolved by these persons within the above period, the matter may be referred by any party to the higher level representatives in its respective organization. These persons shall attempt to resolve the matter within fifteen (15) calendar days of the matter being referred to them or such other period agreed upon by the parties.
13.2. If the unresolved dispute is having a material effect on the Deliverables or Custom Development, the Parties will use their respective reasonable endeavors to reduce the elapsed time in reaching a resolution of the dispute.
13.3. Any dispute or claim arising out of or relating to the Agreement which cannot be resolved amicably between the Parties within the above period shall be solved in accordance with Article 14. -
13.4. The present Article is without prejudice to the right of the Parties to preserve a superior position with respect to a creditor and/or to obtain any injunction, including any summary order (in Dutch: “in kort geding” or “zoals in kort geding”; in French “en référé” or “comme en référé”).
14.1. The Agreement shall be governed by and construed in accordance with the laws of Belgium (without giving effect to the conflict of laws principles thereof).
14.2. Without prejudice to Article 13. - , any dispute arising out of or in connection with the Agreement shall be referred to and finally resolved by the Liège courts, irrespective of the Parties’ location, the place of performance of the Agreement or any other consideration. The Customer must initiate a cause for action for any claim arising out of or relating to this Agreement and its subject matter within eighteen (18) months from the date when Customer knew the fact giving rise to the claim(s).
15.1. This Agreement (including the enclosures attached hereto) contains the entire agreement between the parties hereto end shall supersede any, written or oral, prior agreements or understandings. This Agreement may not be changed or modified, or any provision hereof waived, except by an agreement in writing signed by both Parties.
15.2. Unless otherwise stated in the Agreement, no amendments of any provision of the Agreement shall be valid unless agreed in writing signed by an authorized Representative of each Party specifically referencing the Agreement.
15.3. Except where expressly stated otherwise in the Agreement, the remedies under the Agreement shall be cumulative. Except where expressly stated otherwise in the Agreement, election of one remedy shall not preclude pursuit of other remedies available under the Agreement or at law.
15.4. Subject to the Customer's prior written consent, the Supplier has the right to use the name and logos of the Customer on reference lists and in publicity regarding their provision of services. The Customer shall not unreasonably withhold its consent.
15.5. The provisions of the Agreement are severable. Should one or more provisions of the Agreement be found by a court of competent jurisdiction to be invalid, unlawful or unenforceable under applicable law, that shall not affect the validity, legality or enforceability of the remaining portion of such provision(s) or any other provision of the Agreement, and the provision(s) found invalid, unlawful or unenforceable shall be construed to the maximum extent possible in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties.
Orthanc: The source code is copyrighted by the CHU of Liège and Osimis under the GPLv3 license, with the OpenSSL exception.
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