Last updated: 20th October 2022
1. Scope of Application, Acceptance of the Agreement & Definition
1.1 Scope of Application & Acceptance of the Agreement
The Customer recognizes the respective valid versions of the TDGT and the GT as an integral part of all existing and/or future contractual arrangements between the Customer and TRACTEBEL in connection with the provision of software for use via the Internet.
The GT are available at https://digital.tractebel-engie.com/additional-terms-of-use-for-wisogis/. The Customer is deemed to have read the GT and to have duly accepted it without reservation by checking the corresponding box.
The TDGT are available at https://digital.tractebel-engie.com/tractebel-digital-general-terms-of-use/ upon selecting the respective country. The TDGT are available at https://digital.tractebel-engie.com/tractebel-digital-general-terms-of-use/ upon selecting the respective country. The Customer is deemed to have read the TDGT and to have duly accepted it without reservation by checking the corresponding box.
A detailed description of the services to be provided by TRACTEBEL arises from the respective selected package (“Service Package”), which is included in the Customer’s Purchase Order (“Purchase Order”) and available on TRACTEBEL’s web page https://digital.tractebel-engie.com/solutions/wisogis/.
Any deviations and/or supplements to these GT require the express written approval of TRACTEBEL for their validity. Such deviating agreements shall only apply to the Purchase Order that contains the deviating agreement and shall not have any prejudicial effect for other agreements between the contractual parties.
The Client is deemed to have read the Agreement as defined in Clause “Definitions,” and to have duly accepted it without reservation by checking the corresponding box.
For the interpretation of the Agreement and its foreword, the following terms beginning in upper case, in either the singular or plural form, shall have the meaning applied to them hereinafter:
- “Access Credentials” refers to the usernames, passwords and/or other credentials enabling an Authorized User to access and use the Tool.
- “Affiliated Entity” refers in respect of any Party, to any person that, directly controls, is directly or indirectly controlled by, or is under common control with such Party. For the purposes of this article, “Control” means that the Party has the beneficial ownership of more than 50% of the issued share capital of a company or the legal power to direct or cause the direction of the general management of the company.
- “Authorized User” refers to any person, including but not limited to, employees, agents or independent contractors, working under the instructions of the Customer and who is duly authorized by the Customer to access and use the Tool.
- “Business Day” refers to any day excluding weekends, bank holidays in Belgium and the last week of December of each year.
- “Confidential Information” refers to the technical data, the financial data, statistics and other commercial data regarding the activity of either of the Parties and any other information of a clearly confidential nature or identified expressly as confidential by the Customer or TRACTEBEL. This refers in particular to all of the methods, models, training materials, trade secrets, software and tools of the Parties as well as the designs, expertise, structures, techniques, inventions, developments, processes, discoveries, improvements, data and proprietary software. Confidential Information does not include any information that: (i) is generally available to the public other than as a result of disclosure by a Party in breach of this Agreement; (ii) is known by a Party before receipt from the other Party; (iii) is independently developed by or for the receiving Party without using any Confidential Information; or (iv) is lawfully obtained by the receiving Party and, as far as the receiving Party is aware, has not been obtained in violation of, and is not otherwise subject to, any obligation of confidentiality.
- “Configuration” refers to the technical prerequisites defined in the Service Package and Purchase Order corresponding to the Customer’s computing facilities (hardware, operating system, software, subscription to internet access services) required to access and use the Tool and in a general manner, to allow TRACTEBEL to provide the Services.
- “Correction” refers to a lasting solution provided by TRACTEBEL in order to remedy a Default or a malfunction in the Tool in a definitive manner.
- “Customer Data” refers to all the information provided by the Customer and entered and/or uploaded into the Tool by the Customer. For the avoidance of doubt, Customer Data does not include Results or any other information reflecting the access or use of the Services by or on behalf of the Customer or any Authorized User.
- “Data Protection laws” refers to the European Union General Data Protection Regulation n° 2016/679 (“GDPR”), as may be amended from time to time, and all regulations relating to the protection of personal data applicable to the Services or to TRACTEBEL.
- “Default” refers to any anomaly that cannot be attributable to the Customer Configuration, remains repetitive and reproductible and making (i) the use of the Tool or one of its functions impossible; (ii) having a material negative impact on the use of the Tool ; or (iii) leading to incorrect results.
- “Effective Date” refers to the date of the Purchase order confirmation e-mail from TRACTEBEL sent to the Customer.
- “Force Majeure” refers to any exceptional and unforeseeable event or circumstance (a) which is beyond a reasonable Party’s control, (b) which, having arisen, such Party could not reasonably have avoided or overcome, and (c) which is not substantially attributable to the other Party. Force Majeure may include but shall not be limited to exceptional events or circumstances of the kind listed below as long as the conditions (a) to (c) here above are satisfied: war, hostilities, rebellion, revolution, insurrection, riot, epidemics, quarantine and/or natural catastrophes such as earthquakes, hurricanes, typhoons, or volcanic activity.
- “Harmful Action” refers to anything or any device (including any software, code, file or program) which may: prevent, impair or otherwise adversely affect the operation of the Tool or any computer software, hardware or network, any telecommunications service, equipment or network or any other service or device; prevent, impair or otherwise adversely affect access to or the operation of any program or data, including the reliability of any program or data (whether by re-arranging, altering or erasing the program or data in whole or part or otherwise); or adversely affect the user experience, including, but not limited to, worms, trojan horses, viruses, hacker attacks, botnets of zombie computers and other similar things or devices.
- “Intellectual Property Rights” refer to any and all rights, titles and interests whether arising or granted in any jurisdiction in and to any and all (i) patents, utility models, designs (whether registered or unregistered), trademarks and trade and business names, copyrights (including copyrights in programs and semiconductor topographies), software rights, domain names, databases, moral rights, trade secrets, confidentiality and other proprietary rights including all rights to know-how and other technical or Confidential Information, rights in the nature of unfair competition rights, rights to sue in passing off; all of the foregoing whether registered or not, whether perfected or not; (ii) the benefit of all registrations and applications to register any of the foregoing; (iii) any and all other rights similar or analogous to any of the foregoing.
- “Landing Page” refers to the web address to access Wisogis Tool & Services available at https://wisogis.tractebel-engie.com/.
- “New Services” refers to all the products, modules or components that may be used in connection to the Tool or as independent products and which (i) are not part of an Upgrade or another modification to the Tool and (ii) are not generally provided to the TRACTEBEL’s Customers, including the Customer, as part of the usual Maintenance and Support services. New Services may include products and/or services that complement the Tool and that are provided by one of TRACTEBEL’s subcontractors or suppliers and retailed by TRACTEBEL, or products and/or services developed directly by TRACTEBEL.
- “Normal Business Hours” refers to 9:00 to 17:00 local Brussels time, each Business Day.
- “Personal Data” refers to all personal data as defined in the Data Protection laws.
- “Purchase Order” refers to the Customer’s official document issued to formally request the provision of the Services by TRACTEBEL. Unless otherwise provided, Purchase Order shall be necessary for using a Service Package.
- “Remuneration” refers to the amount to be paid to TRACTEBEL for the Services, as further defined under Section 4.
- “Result(s)” refers to any knowledge developed or perfected under the Agreement and all the documents which formalize them, on any media whatsoever, whether copyrighted and/or copyrightable by restrictive instruments (patents, trademarks, designs, models, etc.), or by restrictive rights (software programs, software utilities, design, etc.) or that are not protected by instruments or restrictive rights (expertise, algorithms, unpatented creations, etc.).
- “Services” refers to the provision of access to and use of the Tool in SaaS mode as defined in the Service Package.
- “Service Package” means the different services of access and use of the Tool proposed by TRACTEBEL in each package.
- “Support Team” refers to TRACTEBEL’s team in charge of handling the Customer’s requests.
- “Term” refers to the period from the Effective Date and until the termination of this Agreement.
- “Third Party” refers to any individual or legal entity other than a Party.
- “Tool” refers to Wisogis, a specific web application accessible in SaaS mode, meaning that it is accessible online, and the required functions of which are described in the Service Package and Purchase Order. The access to the Tool is given through the Landing Page. The Tool is not intended to be used on a mobile device.
- “Upgrade” refers to a version of the Tool with significant and substantial changes, with operational improvements or modifications made to the Tool, which may be provided to the Customer, free of charge. Any Upgrade is indicated by changing the version number of the Tool.
- “Workaround” refers to any procedure or solution for the cause of a reported malfunction, provided as an emergency measure by TRACTEBEL, other than a Correction, allowing for a degraded operation of the Tool in terms of operation, technique and ease of use, which is acceptable to the Customer; it corrects but does not cure an issue; a Workaround also implies if necessary a modification to the recordings in the database by TRACTEBEL. A Workaround provides a temporary and transient solution and must be subject to a Correction within the given deadlines.
2. Services Provided by TRACTEBEL
2.1 Right of Use & TRACTEBEL WISOGIS Account
TRACTEBEL shall provide the software product named and described in the Agreement (“Tool“) to the Customer for use via the Internet (“Software as a Service“).
The Tool is an integrated cloud-based application designed to find suitable locations for renewable energy projects. Unless expressly agreed otherwise, the right of use is subject to the payment of a remuneration to TRACTEBEL. The scope of performance of the Tool comprises the service features available at the respective time. The Customer is not entitled to further rights associated with the Tool, such as ownership, copyright, patent, trademark, or usage rights.
TRACTEBEL provides the Tool to the Customer via the Internet as of the agreed date for the duration specified in the Agreement for use and enables access. For this purpose, TRACTEBEL directly or indirectly hosts Tool.
The Tool shall be accessed by the Customer via the Internet, only through PC (the Tool is not intended to be used on a mobile device). Google Chrome is in the Tool’s default configuration and current version the sole web browser supported by TRACTEBEL for accessing the Tool. Other web browsers may work but have not been tested or validated by TRACTEBEL. For the duration of this Agreement, the Customer is given the non-exclusive and non-transferable right to access the Tool by means of a browser and an Internet connection and to use same for its own business purposes exclusively for the exercise of its commercial or independent professional activity. The Customer is responsible for the Internet connection between the Customer and the computer center and the hardware and software required for this purpose (e.g. computer, network connection, browser).
The right of use is limited to the number of usage units booked by the Customer in accordance with the Agreement. In case the number of usage units booked by the Customer exceeds the limitation, TRACTEBEL shall be entitled to suspend its obligations under the Agreement by giving fifteen (15) business days prior written notice (for more information regarding Customer’s liabilities and responsibilities, see Section 8.2 of these GT).
TRACTEBEL undertakes and warrants that:
- It shall provide the Tool and Services in accordance with the applicable law, these GT, the TDGT, and the Purchase Order;
- Any Tool (or in the event of any Upgrade)/services used and/or submitted to the Customer by virtue of the Agreement shall not be affected by or cause any Harmful Action;
- It is duly authorized to perform the Services and it is duly authorized to sign the Agreement, and it is not bound by any contract preventing it, in any manner, from honoring its obligations under these GT, the TDGT, and the Purchase Order.
Except as expressly permitted by TRACTEBEL, Customer must create an TRACTEBEL ID and online account profile to obtain and use the Tool and Services. Customer must keep its account profile up to date with current account information (always including current contact information). For more information, see Section 6 of the TDGT.
The Customer’s account administrator may use Customer account information to manage Customer’s use and access to the Tool and Services. Customer will access the Tools and Services by the means required by TRACTEBEL under these GT.
2.2 License type
Subject to Customer’s compliance with these GT, the TDGT and applicable law, the Customer may access and use the Tool and Services that TRACTEBEL makes available and for which that the Customer is granted a license from TRACTEBEL (please see Section 4 of the TDGT for the general terms and conditions governing the Use of the Tool and Services). The Customer’s license expires at the end of the term set forth in its Purchase Order or these GT. Unless expressly agreed otherwise, the license is subject to the payment of a remuneration to TRACTEBEL.
TRACTEBEL grants to the Customer a nonexclusive, nontransferable, revocable license to use the Tool and Services. The foregoing grant of license does not apply to Free Memberships, Trials and Offers, New Products and Services, Prerelease and Beta Versions (see section 4 of the TDGT for terms governing the use of those Tools and Services).
The version(s) of the Tool and Services available at the Customer’s renewal date may be different from the version(s) available when the Customer first purchased its license from TRACTEBEL. The Customer agrees that its decision to use the Tool or Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by TRACTEBEL regarding future functionality or features.
The following license types are available:
The “Employee User” license which means that the access to the Tool and Services is limited to three (3) Authorized Users at the Customer’s company who have been named by the Customer and for whom the license has been validly purchased in accordance with this Agreement. The Authorized Users are entitled to access the Tool and Services on several devices or simultaneously at several workstations within the Customer’s company. This does not include the use on devices or workstations of Affiliated Entity(ies) of the Customer. The purchase of additional single license(s) is required for Affiliated Entity(ies).
The ”Single” license means that the access to the Tool and Services is limited to one device or at one workstation within each Affiliated Entity of the Customer under consideration.
Any sub-licensing or further licensing of the Tool is prohibited. The Customer has no right to a copy and thus also no right to a backup copy of the Tool. All rights in the Tool or the Service other than the right of use defined in these GT remain fully with TRACTEBEL.
The Tool and Services are provided “AS-IS.” To the maximum extent permitted by law, TRACTEBEL disclaims all warranties, express or implied, including the implied warranties of non-infringement, merchantability and fitness for a particular purpose. TRACTEBEL makes no commitments about the content within the Tool and Services. Legal warranty in respect of hidden defects in accordance with 1641 of the Belgian Civil Code is excluded (for more information regarding our Disclaimer of Warranties, see Section 9).
TRACTEBEL will carry out a diagnosis of any Default reported by Customer and implement a Correction or offer a Workaround solution according to the Service Levels procedures defined in the Service Package and Purchase Order (for more information regarding our Liabilities, see Section 4.18 of the TDGT and Section 8.1. of these GT).
The scope of performance of the Tool and Services comprises the service features available at the respective time. The Customer is not entitled to further rights associated with the Software, such as ownership, copyright, patent, trademark, or usage rights. The right of use is limited to the number of usage units booked by the Customer in accordance with the Purchase Order and these terms.
The Customer will not, directly or indirectly make the Tool available for use free of charge or against payment to third parties or to persons outside the authorized group of users.
The Customer will not, directly or indirectly: reverse engineer, decompile, decode, adapt, disassemble or otherwise attempt to discover or gain access to the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services; copy, modify, translate, or create derivative works based on, or improvements of the Services or any Software (except to the extent expressly permitted by TRACTEBEL or authorized within the Services); or remove any proprietary notices or labels.
The customer shall refrain from directly or indirectly:
- in particular, from attempting to bypass the security measures, verification of the authentication or any other protective measures, or alter, hack or disrupt the Services or the Tool or any website, information system, server, router or any device connected to the internet.
For purposes of clarity and without limiting the generality of the foregoing, the Customer shall not, except as this Agreement expressly permits:
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services to any person, including or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
- input, upload, transmit, or otherwise provide to or through the Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Action;
- damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services or TRACTEBEL’s provision of services to any Third Party, in whole or in part;
- remove, delete, alter, or obscure any trademarks, specifications, documentation, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services, including any copy thereof;
- access or use the Services in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any Third Party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Service Provider Customer), or that violates any applicable law;
- access or use the Services for purposes of competitive analysis of the Services, the development, provision, or use of a competing software service or product or any other purpose that is to TRACTEBEL’s detriment or commercial disadvantage; or
- otherwise access or use the Services beyond the scope of the authorisation granted under this Agreement.
In case of non-compliance with use restrictions, TRACTEBEL shall be entitled to suspend its obligations under the Agreement by giving fifteen (15) business days prior written notice (for more information regarding Customer’s liabilities and responsibilities, see Section 8.2 of these GT).
If Tractebel reasonably determines that Customer’s use of the Tool and Services is causing a material risk to the security or operations of Tractebel or any of its customers or to the continued normal operation of other Tractebel customers (each a “Risk of Use”), then Tractebel may, at any time, upon written notice to Customer:
(1) immediately suspend Customer’s access, in whole or in part, to the Tool and Services causing the Risk of Use, until such Risk of Use is resolved; or
(2) as a final option, where Tractebel has first used all commercially reasonable efforts to mitigate the Risk of Use, Tractebel may terminate the affected Tool and Services.
2.5 Exclusion & other services
For the sake of clarity, the following services are excluded but could be agreed separately between the Parties:
The Customer may, at its sole discretion, decide to purchase New Services and Products. (For more info regarding the governing terms, see Section 4.12. of the TDGT)
2.6 Operation & Maintenance
The Tool shall be available full-time. However, the availability can be temporarily restricted in case of technical malfunctions or maintenance. If SaaS is unavailable due to scheduled maintenance, TRACTEBEL will inform the Customer in due time in written form.
TRACTEBEL shall take appropriate measures to make it possible for the Customer to use the Service as interruption-free as possible. TRACTEBEL cannot guarantee availability of the Service at all times and absence of any other disruptions and interruptions to the functioning. The Customer represents that it has reasonable knowledge of the internet and its characteristics and its limitations and acknowledges in particular that the transmission of data over the internet only has a relative technical reliability, as the data circulates on heterogeneous networks with a range of technical characteristics and capacities, which may on occasion be saturated at certain times of the day.
The Customer shall notify TRACTEBEL of any disruptions to the Service without delay and provide information regarding the details of the circumstances of the issue. TRACTEBEL shall remedy the disruption to the Service within an appropriate period of time. TRACTEBEL is entitled to circumvent the disruption to the Service by means of a workaround solution if the cause of the disruption itself is only to be remedied with inappropriate expense and the usability of the Service is not significantly negatively affected.
The Maintenance include activities necessary for keeping the Tool up and running and supporting the users in their usage of the Tool (for more information, see Section 11.2 of the TDGT)
2.7 Support & Technical Assistance
An online assistance is at disposal of the Authorized User and includes the following:
• A video with a detailed explanation of the Services Package and a demo of the Tool;
• Support for quick start for the usage of the Tool;
• Explanation of the SaaS contract, process of invoicing.
The support shall not include: general know-how transfer, trainings, configuration implementation or Customer-specific documentation or modification of the Tool.
Support shall be carried out by email to firstname.lastname@example.org. TRACTEBEL shall provide the support services during working hours from Monday to Friday between 8.30 am and 5.00 pm CET. Legal holidays are excluded. Inquiries received outside of these support times shall be regarded as received on the following working day.
Unless otherwise provided in the Agreement, TRACTEBEL shall also assist the Customer with regards to the Tool with:
The technical assistance is ensured by a Support Team mobilised on a best effort basis. The Customer may introduce requests like (i) questions; (ii) Default reporting and; (iii) suggestions, using communication channels made available by TRACTEBEL in the Tool.
From the date of receipt of a question or Default reporting in writing, TRACTEBEL undertakes to contact the Customer within a maximum period of three (3) Business Days to acknowledge receipt of the Customer’s request and to send the Customer a written reply within a maximum period of ten (10) Business Days.
By question, it shall be understood any request for information or support relative to normal and expected use of the Tool and, in particular, any question concerning the interpretation of the documentation given to the Customer by TRACTEBEL and expressed by the Customer in writing and in sufficient details. Detailed support like business support for the user for building its own use cases or not strictly related to the usage of the Tool will be considered Consulting Services and therefore not included in the Services.
TRACTEBEL will classify Defaults using the following categories:
The priority level will be defined by TRACTEBEL based on the category of Default and notified to the requester. The following corresponding intervention time will be applied for the corrections:
2.8 Changes to services
TRACTEBEL may modify the Tool (Service, including its system requirements) for the purposes of adapting to technical or commercial market changes and for good cause. In particular, such shall be deemed to exist if the modification is required due to a) a necessary adaptation to a new legal situation or case law; b) changed technical framework conditions (new browser versions of technical standards); c) protection of system security, or; d) further development of the Tool (disabling old functions that are largely replaced by new ones).
TRACTEBEL may remove some features or functions from the Tool and offer said features or functions in a new product, but shall in such case provide the Customer with the corresponding new product at no additional cost for the remaining part of the Agreement validity period.
3. Involvement of sub-contractors
TRACTEBEL is entitled to involve sub-contractors for the purpose of meeting its contractual obligations. The hosting of the Tool and its data is managed by a subcontractor on behalf of TRACTEBEL.
TRACTEBEL promises to stand surety for its cloud services’ subcontractor (promesse de porte-fort) for the delivery to the Customer of the Services in compliance with the terms of this Agreement.
The hosting service of the Tool may be suspended for any maintenance work required for the proper operation of the Tool, for a reasonable period of time. TRACTEBEL undertakes to give notice of the interruption of services to the Customer at the earliest opportunity so that the latter can prepare for the suspension of the Services and take appropriate measures sufficiently in advance to avoid any disruption to its activity. For the avoidance of doubt, interruption of the Services shall not be considered as a breach of this Agreement and TRACTEBEL shall not be considered liable for (a) a Force Majeure event; (b) a fault or failure of the internet or any public telecommunications network; (c) a fault or failure of TRACTEBEL’s hosting provider or other TRACTEBEL’s subcontractors due to a Force Majeure event, and (d) a fault or failure of the Customer’s computer systems or networks.
4. Remuneration and Payment Terms
4.1 Free structure
For the use of the Tool during the contractual term, the Customer shall owe TRACTEBEL the license fees according to the respective Service Package and Purchase Order.
The Customer may at any time notify TRACTEBEL of a request for the performance of optional or additional Services related to Wisogis. Optional Services shall be subject to a specific Purchase Order issued by the Customer and accepted by TRACTEBEL, and TRACTEBEL undertakes to perform such optional Services under the TDGT, any applicable additional terms and the Customer’s Purchase Order.
4.2 Payment & Upgrades
The Customer will be billed for the first 12-month period immediately upon email confirmation of the Purchase Order by TRACTEBEL.
TRACTEBEL shall provide the Customer with Upgrades at no additional cost. TRACTEBEL shall also provide the Customer with developments in the functions of the Tool at no extra cost as soon as they become available. Upgrades of versions of the Tool, and the developments of functions of the Tool shall not entail any additional fees for the use of the Tool, nor any fees for maintenance or other additional fees, for as long as the Customer does not activate a new a New Product.
4.3 Net Prices, Taxes and Third-party fees
The price to be paid for the SaaS consist of an annual fee. Details are specified in the Purchase Order. All prices exclude any applicable taxes (such as sales tax (value added tax)) and third-party fees (such as credit card fees or foreign exchange fees). TRACTEBEL is not responsible for payment of, any applicable taxes and third-party fees incurred in connection with the licensing of Tools and Services and The Customer shall be responsible and shall directly pay or reimburse to TRACTEBEL any tax, duty and any other imposition due under any applicable laws. If any fees are charged to TRACTEBEL, TRACTEBEL may take steps to collect those fees from Customer, and the Customer will be responsible for all related collection costs and expenses incurred by TRACTEBEL.
All amounts due to TRACTEBEL shall be made in full without any deduction or withholding in respect of any tax, duty, withholding tax, charge, value-added tax or similar taxes or charges unless the deduction or withholding is required by any legal requirements, in which case the Customer, unless the deduction or withholding has become mandatory exclusively as a result of TRACTEBEL’s negligence, shall increase the amounts payable to TRACTEBEL in such manner that the net amounts received by TRACTEBEL shall be equal to the amounts originally payable to TRACTEBEL, had no such deductions or withholdings been made. In any event, the Customer shall provide TRACTEBEL with evidence that any applicable deduction or withholding made has actually been transferred to the relevant tax authority. The evidence to be so provided to TRACTEBEL by the Customer shall meet all conditions required under standard accounting rules applicable to TRACTEBEL and all requirements set by competent tax authorities so that TRACTEBEL is always in a position to demonstrate that the deduction or withholding has been made in accordance with all applicable laws.
4.4 Invoicing – payment terms
The price shall be invoiced within minimum one day after the access has been granted to the Authorized User. The invoices are promptly payable and due thirty (30) calendar days after the date of issuance. Any invoice that has not been disputed with reasonable substantiation within fourteen (14) calendar days after its issuance shall be deemed to have been approved without reservation by the Customer.
4.5 Measures in the event of payment default
If the Customer defaults on the payment of fees, after relevant warning by email or letter, TRACTEBEL is entitled to block access to the Service or extraordinarily terminate the contractual relationship. The Customer shall have no access to the data saved by it in the Service during the block. In the event of a termination, Section 10.2 shall apply.
In the event of any late payment with regard to the contractual deadline, the Customer shall owe interest for late payment on the amounts, i.e., a flat rate compensation for recovery fees set by decree pursuant to Belgian law 02/08/2002 concerning the measures against late payment in commercial transactions. Interest for late payment shall be calculated from the day after the due date for the payment and until the day on which TRACTEBEL is credited. Interest rates are provided by law (ex. 8% for the first half year of 2022). If applicable, Tractebel shall also be entitled to claim reasonable compensation from the debtor for all relevant recovery costs incurred as a result of the latter’s late payment.
5. Customer Data, Data Protection, Compliance with Security and References
5.1 Customer data
All Customer Data is and shall remain the sole and exclusive property of the Customer.
Given that the storage of Customer’s data is a prerequisite for the use of SaaS, the Customer hereby grants to TRACTEBEL a worldwide, royalty-free, non-exclusive, sublicensable license to use, copy, display and modify the Customer Data (excluding any Personal Data) for the exclusive purposes of (a) providing the Services or other related Services to the Customer; and (b) evaluating and improving the efficiency, utility and functionality of the Tool, it being understood that Customer Data may be used by TRACTEBEL only as aggregate information (i.e. anonymous/pseudonymized information that is grouped together to generate statistics). In other words, TRACTEBEL may collect aggregate usage data; such data is associated with the Customer’s TRACTEBEL ID and online account profile and allows TRACTEBEL to maintain security, monitor performance, and improve quality and features. TRACTEBEL shall have the limited right to use the Data to provide and improve the Solution or the Services in accordance with this Agreement and for statistical and analytical purposes.
The Customer warrants that he has obtained all the rights necessary to grant such a license to TRACTEBEL .
In the event that Personal Data are processed, the provisions of sections 5.2, 6 and 10.3 additionally apply.
To the extent the Customer has to enter or transmit specific parameters to TRACTEBEL in order to use the Tool (e.g. to initiate actions if these parameters are not met or exceeded), the Customer shall be responsible for ensuring that such parameters are (a) accurate and (b) suitable for the intended purpose. The Customer is exclusively entitled to the data it has provided as an input, generated thereby and allocatable to the Customer and the end users of Customer in the context of the use of the Tool (“Customer Data”).
TRACTEBEL shall own and retain all right, title and interest in and to (a) the Services and Tool, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
The provisions of this Section shall survive any termination of this Agreement.
Please see Section 5 of the TDGT for the other general terms and conditions governing the Customer’s content.
5.2 Personal Data Protection
In any case, TRACTEBEL shall only transfer Personal Data to, or otherwise make Personal Data accessible, in the European Economic Area or in other countries recognized as providing an adequate level of protection for the purpose of Data Protection laws. For transfers to other countries not offering an adequate level of data protection according to a decision of the European Commission, the Parties agree on the European Commission’s Standard Contractual Clauses, which shall become part of this Agreement and additional safeguards if required unless other legal appropriate safeguards would legitimize the international data transfer between them.
5.3 Compliance with Security
TRACTEBEL undertakes to implement all the reasonable means to preserve the security, the integrity, the availability and the confidentiality of the information provided by the Customer and entered and/or updated into the Tool by the Customer, including any Personal Data. “Data” means any text, information or material, such as audio files, video files, electronic documents or images, that the Customer uploads and imports into, or create with the Tool and Services. The Customer and its authorized Users must not upload any Data that is prohibited by any applicable law.
TRACTEBEL undertakes to refrain from:
The Customer has and will, subject to TRACTEBEL complying with its obligations, retain sole responsibility for:
The Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to:
In particular, TRACTEBEL is entitled, subject to the consent and written approval of the Customer, to publish the name of the project realized by the Customer in the context of marketing activities, in particular refer to the business relationship on TRACTEBEL’s website with the name and corporate logo of the Customer.
6. Customer’s Specific Obligations
With regard to the right to access and use the Services, the Customer undertakes to access and use the Services according to the conditions of these GT, the TDGT and the Purchase Order and warrants as follows:
- these GT;
- TRACTEBEL any information requested by the Service Provided to facilitate consultation, if said information and documents are required for the performance of the Services;
- TRACTEBEL, if necessary, with access to equipment, Tool and services for the purposes of maintenance and fault prevention.
The contractual use of the services provided by TRACTEBEL depends on the hardware and software used by the Customer, including workplace computer, router, data communication means etc., meeting the minimum technical requirements for the use of the Tool version as offered from time to time and on the authorized users being familiar with the operation of the SaaS. The Customer shall establish, at its own cost, a data connection via the internet between the workstations to be used and the data transition point defined by TRACTEBEL. TRACTEBEL is entitled to redefine the data transition point at any time if necessary for the unobstructed use of the services by the Customer. In such case, the Customer shall establish a connection to the newly defined transition point. TRACTEBEL assumes no responsibility for any malfunction in the transmission of or access to data outside of TRACTEBEL’s control (e.g. due to maintenance times or in case of malfunctions attributable to the provider of storage capacity, the internet provider, the network provider, etc.).
In accordance with the Agreement, the Customer will provide the Access Credential only to his designated Authorized User(s) The Customer is obliged to keep the log-in data, i.e. the Access Credentials provided by TRACTEBEL confidential from unauthorized persons and to keep it secure from access by unauthorized persons, thus making it impossible for unauthorized persons to abuse the data in order to gain access. The personal password must be changed in regular intervals. As soon as the Customer has any indication that a third party may have gained unauthorized access to, or may have misused, the user and access rights, the Customer is obliged to inform TRACTEBEL thereof without delay via email@example.com.
The Customer must not use improperly, or allow any improper use, of the Tool; in particular, the Customer must not transmit any illegal content. The Customer shall refrain from any attempt, including through unauthorized third parties of unauthorized retrieval of information or data or from interfering with programs run by TRACTEBEL or from intruding into data networks of TRACTEBEL without authorization.
When using the Tool as well as the contractual services, the Customer shall observe all applicable laws and regulations. The Customer is prohibited from uploading data or content that infringes legal provisions, third-party property rights or copyrights, or other third-party rights.
The Customer shall save the data and content transferred to TRACTEBEL on a regular basis and according to the risk involved and create its own back-ups in order to ensure their recovery in the event of data and information loss. The Customer shall in particular use any options provided by TRACTEBEL to save its data in its own sphere of responsibility. The Customer shall scan the data and information for viruses prior to upload and use state-of-the art antivirus programs.
If the Customer becomes aware of any actual or threatened prohibited activity, the Customer shall, and shall cause its Authorized Users to, immediately, take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and notify TRACTEBEL of any such actual or threatened activity.
The Customer shall release TRACTEBEL and involved third parties of all third-party claims that may arise from (a) unlawful use of the Tool by the Customer and/or, with the consent of the Customer, by third parties, (b) disputes arising from data protection laws, copyright laws or other legal disputes associated with the use of the Tool by the Customer.
The Customer hereby agrees to indemnify and hold harmless TRACTEBEL against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.
In the assertion of relevant claims, the Customer is obligated to notify TRACTEBEL thereof in writing without delay. In this case, TRACTEBEL is entitled to block the Service for the Customer without delay and without providing a grace period. Any compensation claim asserted by the Customer based on the blocking of the Service is excluded.
The Customer shall inform TRACTEBEL by email of any defect/non-compliance affecting the Tool or Services at the earliest opportunity.
TRACTEBEL undertakes to carry out a diagnosis of any Default so reported and to implement a Correction or offer a Workaround solution according to the Service Levels procedures defined in the Service Package and Purchase Order
TRACTEBEL shall not be liable whatsoever and to the fullest extent permitted by law for
• arising from the Customer’s violation of the contractual obligations ;
• caused by TRACTEBEL’s involved third parties or support persons;
• due to viruses;
• as a result of malicious code;
• subsequent to a hacker attack;
• subsequent to a software error;
• subsequent to an error in the operating system, disruptions to operations as a result of fault remedy, maintenance, infrastructure modifications, introduction of new technologies.
• subsequent to a faulty service pack from another manufacturer;
• as a result of data losses (TRACTEBEL shall not be liable for the loss of Customer data if the damage is based on the Customer’s omission to create back-ups in accordance with Section 6.).
b) indirect or subsequent damages such as profits foregone, savings not realized or third-party claims.
TRACTEBEL shall be liable for damages – regardless of the legal cause – solely: a) in case of willful or reckless misconduct; b) in case of gross negligence; c) in case of injury bodily injury or death; d) in the event that TRACTEBEL has fraudulently concealed a defect; e) insofar as TRACTEBEL has given an explicit guarantee; or f) if TRACTEBEL violates an essential contractual duty.
TRACTEBEL’s liability for all damages arising, within the same contractual year, out of or in connection with its services and performance, caused by TRACTEBEL, its officers, subcontractors, employees, vicarious agents or associates, as well as any obligation to indemnify the other Party, shall, regardless of the legal cause, except under the circumstances a) to e) set out in the paragraph above, be limited to the remuneration due for the respective contractual year. In the event of violation of an essential contractual duty by negligence of TRACTEBEL (circumstance f) set out in the paragraph above), TRACTEBEL‘s liability for damages shall be limited to typical contractual direct losses that could have been foreseen. An essential contractual duty is a duty the fulfillment of which is required for the due execution of a contract and the observance of which a Party relies on, and may rely on, regularly, as well as a duty the breach of which will put the achievement of the contractual purpose at risk. In any case, neither Party shall be liable, whether as a result of breach of contract, warranty, indemnity, tort (including negligence), strict liability, or otherwise, for any special, consequential, incidental, or indirect damages, or any loss of revenue, loss of profit, loss of production, loss of contract, loss of goodwill or business, third-party punitive damages, loss of financing expenses (including interest), or loss of data (including the cost of its retrieval) suffered by the other Party or the other Party’s contracting parties, arising out of or in connection with this Contract.
Insofar as TRACTEBEL’s liability is excluded or limited, this shall also apply to the personal liability of TRACTEBEL’s officers, subcontractors, employees, representatives, vicarious agents and associates as well as to the liability of affiliates, suppliers and licensors.
The limitation period for claims for damages against TRACTEBEL is one year insofar as permitted by law, unless the damage was caused intentionally. Claims for damages pursuant to the Product Liability Act are subject to the statutory limitation periods.
The Customer is responsible for all activity that occur via its account even if that activity is not attributable to the Customer itself or takes place without its knowledge or consent (for more information, see Section 7 of the TDGT). The Customer must notify TRACTEBEL customer support immediately if it becomes aware of any unauthorized use of its account. The Customer may not share its account information (except with an authorized account administrator), whether intentionally or unintentionally.
The Customer shall be solely responsible for the compliant use of the Tool and Services in accordance with TRACTEBEL’s applicable procedures and the accuracy, quality and legality of the Customer Data to be processed and of the means by which it was acquired. The Customer assumes sole responsibility for the use, conclusions or interpretation made from the Report obtained from the Tool.
In case of non-compliance with the Customer’s obligations, as default of payment or any other material reason other than TRACTEBEL ’s own negligence preventing TRACTEBEL from performing its Services, TRACTEBEL shall be entitled to suspend its obligations under the Agreement by giving fifteen (15) business days prior written notice. If the Customer does not remedy the non-compliance within the abovementioned deadline, Section 10.2 shall apply. Such a notice shall not be applicable in case of a security breach.
If Tractebel reasonably determines that Customer’s use of the Tool and Services is causing a material risk to the security or operations of Tractebel or any of its customers or to the continued normal operation of other Tractebel customers (each a “Risk of Use”), then Tractebel may, at any time, upon written notice to Customer (See Section 2.3 for more information).
In each individual case the Customer allows the use of the Tool to third parties, the Customer shall be obliged to pay damages in the amount of the remuneration that would have been due for a single user if a contract had been concluded, unless the third-party use is not attributable to the Customer. The Customer shall be free to prove that no damage was incurred or that the incurred damage was substantially lower. All further rights of TRACTEBEL shall remain unaffected by the foregoing provision.
TRACTEBEL services are covered by insurance to cover the pecuniary consequences of any Third Party’s liability incumbent on it where applicable due to personal injury or tangible damage, regardless of its origin, caused to the Customer and to any Third Party.
9. No Warranties
Except as represented in this agreement, the Tool and the Service of TRACTEBEL is provided “as is”. Other than as provided in these GT, TRACTEBEL makes no other warranties, express or implied, and hereby disclaims all implied warranties, including any warranty of merchantability and warranty of fitness for a particular purpose.
TRACTEBEL shall, at its sole discretion, rectify or re-perform duly notified defects in the performance within reasonable time.
The Customer shall inform TRACTEBEL of defects in the contractual performance in written form (including email) without undue delay and state in a reproducible manner how and when the error or defect occurs. The Customer shall actively support TRACTEBEL in troubleshooting by providing suitable documentation (hardcopy, etc.) and any other documents, data, etc. necessary for the analysis and elimination of the defect by TRACTEBEL. If during the inspection of a complaint the defect turns out not to have occurred within TRACTEBEL’s area of responsibility, TRACTEBEL may charge the Customer for the inspection at the respective applicable prices. This does not apply if the Customer, exercising due care, could not have determined that the malfunction did not occur in TRACTEBEL’s area of responsibility.
If, due to reasons attributable to TRACTEBEL, subsequent performance fails within a reasonable grace period notified by the Customer, the Customer may reduce the agreed remuneration on a pro rata basis for the time in which the Tool was not available to the Customer to the agreed extent. The right to reduce the remuneration is limited in amount to the monthly remuneration due for the defective part of the performance.
Legal warranty in respect of hidden defects in accordance with 1641 of the Belgian Civil Code is excluded.
10. Term and Termination
The Agreement is concluded for a one-year period (“Basic Period“) and shall thereafter extend automatically by the same period (“Extension Period“) if the contractual relationship is not ordinarily or extraordinarily terminated pursuant to Section 10.2 below by one of the contractual parties.
The provisions of Section 10.2 shall apply as aforesaid with respect to a reduction during the term.
The Agreement of use is concluded for the term specified in the Purchase Order. The term is automatically renewed by subsequent periods (extended term), unless either Party terminates the contract with three months’ notice to the end of the fixed term or the extended term, respectively.
Either Party may terminate for convenience the contract by giving to the other Party a thirty (30) days written notice of termination.
In the event that one Party is in breach of any of its obligations under these GT, the other Party may put the defaulting Party on notice to remedy said breach within thirty (30) days. If on the expiry of these thirty (30) days, the breach has not been remedied, it is understood that termination shall take place automatically, without any formality and without the prior intervention of a court, as of the effective date set in the notice of termination and without prejudice to the non-defaulting Party’s rights of recourse and appeals.
If the defaulting party is the Customer, the Customer is not entitled to a reimbursement of the remuneration paid for the use and TRACTEBEL is entitled to immediately claim an amount equaling 75% (seventy-five percent) of the remuneration for the remaining term, until the next possible regular termination date, of services offered by TRACTEBEL against remuneration and affected by the termination, unless the Customer proves that TRACTEBEL or TRACTEBEL Affiliate has not suffered any damage or that the actual damage is significantly lower than this amount. TRACTEBEL or TRACTEBEL affiliate may prove that the actual damage exceeds this amount.
In the event that (a) one of the Parties becomes or is declared insolvent or unable to pay its debts as they become due or makes an assignment for the benefit of its creditors, or notifies the other Party that it anticipates either condition, (b) a receiver, administrator, liquidator or trustee is appointed for all or a substantial part of either Party’s assets, (c) either Party or its shareholders or creditors take any other action looking to the relevant Party’s dissolution or liquidation, (d) either Party makes an assignment for the benefit of all or substantially all of its creditors, or that (e) either Party enters into an agreement for the composition, extension, or readjustment of substantially all of its obligations, then the other (solvent) Party may, in its sole discretion, terminate this Agreement immediately and without prior intervention of a court.
In the event of termination, and except if termination is due to TRACTEBEL’s or the Customer’s material breach of the Agreement, the Customer shall pay TRACTEBEL upon receipt of the invoice the full Remuneration in case it was due for all Services which have been completed in full conformity with the Agreement.
If termination is due to TRACTEBEL’s (and except in the case of the material breach of the Agreement) convenience, Parties agree that TRACTEBEL will not have to reimburse the Remuneration to the Customer for such part of the Services which have been performed in full conformity with the Agreement.
On termination of this Agreement for any reason:
The termination or expiry of the Agreement in no way releases the Parties from obligations that may have arisen prior to said termination and does not bring an end to the stipulations of the Agreement which, by their nature, must survive, such as, in particular, the obligations referred to in the “Intellectual Property Rights”, “Confidentiality” and “Contractual Guarantees and Liabilities” articles.
10.3 Customer’s data after
Upon request by the Customer, TRACTEBEL shall delete the data of the Customer saved on its servers finally and in full. This action shall be subject to mandatory legal retention obligations.
TRACTEBEL is not obligated to surrender its data to the Customer in deviation to these provisions (in particular relating to time, format or migration). Any deviating surrender of the Customer’s data shall require the prior written consent of TRACTEBEL as well as separate remuneration by the Customer.
The contractual partners obligate themselves and their employees and involved support persons reciprocally to maintain the confidentiality of all documents and information not generally known that relate to the business sphere of the other contractual party and, which become accessible in the preparations for and execution of this contractual relationship.
More specifically, for the Contractual Term of the Agreement and for a period of five (5) years following its termination or expiry, the Parties undertake to :
- consent from the other Party, it being understood that the Parties may communicate the Confidential Information to their sub-contractors exclusively for the requirements of the performance of any Services or to a Third Party in the event of an audit or to their advisors, lawyers, and accountants for the purposes of reporting or seeking advice, provided that they make a similar confidentiality undertaking;
In any event, both of the Parties accept responsibility for compliance by the natural or legal persons to which they are bound as referred to in the provisions of these GT.
This Section does not prohibit the Parties from divulging any information required by applicable law, if:
Each Party commits to agree with the other prior to make any public announcement, communication, publication or technical, commercial or any other type of presentation or circular regarding these GT. Parties’ agreement shall not be unreasonably withheld or delayed.
The confidentiality obligation shall continue to endure even after termination of the contractual relationship to the extent there is justified interest therein.
12. Intellectual Property Rights
Without prejudice to Section 4.6 of the TDGT, the Tool and more generally all the services, files, data, designs, or any other Intellectual Property Right or expertise provided to the Customer under these GT remain the exclusive property of TRACTEBEL. These GT cannot be interpreted as assigning to the Customer in an express or tacit manner, any property right over these elements. As the GT do not transfer to the Customer any physical or Intellectual Property Right over the Service, the Customer undertakes not to alter, hide, dissimulate, or remove any information or reference regarding the copyright or property right indicating TRACTEBEL’s ownership of the Tool.
TRACTEBEL shall remain the owner or holder of rights over any document (particularly reports, programs, manuals, magnetic tapes or disks, lists and other documentation, or any medium regardless of its form) and of Intellectual Property Rights and particularly patents, trademarks, copyright and other relative rights, including any expertise, know-how and knowledge that it possesses at the time when the Purchase Order is signed or for which it has a user license (together the “Prior Knowledge”). Accordingly, it shall remain free to use them, within the limit of the rights that it held prior to the signing of the Purchase Order, except to preserve the rights of the other Party under the conditions specified hereinafter.
The Customer acknowledges that TRACTEBEL retains all the rights and title over the Service, as well as all the technologies, inventions and pre-existing content that are integrated and all the Intellectual Property Rights and/or industrial rights with regard to any of these elements.
The Parties undertake not to challenge or impair the other Party’s rights, directly or indirectly, and to only use the Prior Knowledge for the needs of the Purchase Order.
Without prejudice to its obligations under the stipulations of this Section, TRACTEBEL may use the improvements made to its Prior Knowledge for any other service for the benefit of a Third Party. This right shall not cover any improvement made to said Prior Knowledge that reflects a problem specific to the Customer, such an improvement being part of the Results.
All the Results are the sole property of TRACTEBEL. TRACTEBEL grants a non-exclusive, for the duration of the protection of the Intellectual Property Right and royalty free license for the whole world on the Results to the Customer, for any commercial or non-commercial use whatsoever, provided that the Customer cannot use such license and/or the Results to compete with TRACTEBEL on the delivery of consulting services or trainings to Third Parties. The Customer may transfer this license to any Affiliate Entity for the needs of the Agreement.
The Customer guarantees and shall indemnify TRACTEBEL against any damages, losses, costs, liabilities, fines or penalties (including all reasonable lawyer’s fees), incurred by TRACTEBEL subsequent to any allegation, proceedings, action and/or claim by a Third Party on the grounds that an intellectual property right, regardless of its nature, assigned by virtue of this Agreement and/or regarding the Service and/or the Results, infringes any Third Party’s intellectual property rights.
This guarantee shall apply provided TRACTEBEL complies with the following conditions:
Furthermore, if it is informed about a legal action or motion, the purpose of which to restrict any of the rights assigned under these GT, or to limit the enjoyment of the Service or any Result, the Customer shall (a) obtain the right for TRACTEBEL to exercise its rights in accordance with the GT and the Purchase Order, or if this solution proves impossible, the Customer shall (b) adapt the Service and/or Result in question so that it is no longer an infringement.
Unless otherwise stipulated in these GT, TRACTEBEL and its staff shall remain free to use and employ their knowledge and skills developed during the performance of the Agreement, to the extent that they do so without harming the Customer.
13. Assignment and Subcontracting
The Parties shall not assign or transfer any part of the Agreement to a Third Party without the express prior written consent of the other, which shall not be unreasonably withheld. Notwithstanding the above, the Parties shall be entitled to assign or transfer rights and obligations resulting from the Agreement to any Affiliated Entity.
TRACTEBEL may subcontract only a portion of the Services. TRACTEBEL is bound to impose obligations on each of its subcontractors to ensure compliance with the clauses of these GT. It will remain liable for the performance of the entire Agreement. In any event, TRACTEBEL shall, under its own liability, coordinate the activities of its subcontractors by scheduling and steering the performance of the services.
14. Final Provisions
14.1 Amendments to these GT
14.2 Offsetting and assignment of claims
The offsetting of any claims of TRACTEBEL against counterclaims of the Customer shall require the prior written consent of TRACTEBEL.
The Customer is not entitled to assign any claims from the contractual relationship with TRACTEBEL to third parties, in whole or in part.
Notwithstanding the above, the Parties shall be entitled to assign or transfer rights and obligations resulting from the Order Purchase to any Affiliated Entity.
Notwithstanding any provision to the contrary in these GT, any failure to exercise or any delay in exercising a right or recourse that is provided for in the GT or by law shall not prevent its exercise or constitute a renunciation of said right.
These GT shall also apply to subsequent Tool updates and upgrades provided to the Customer, unless otherwise agreed at the time of provision of the subsequent version or upgrade.
The GT are drafted in English language. Other versions are translations for information purposes only. In the event of any inconsistency or in case of conflict, the English version will prevail as the leading version.
TRACTEBEL’s failure to enforce or exercise any provision of these GT is not a waiver of that provision.
14.4 Headings & Boxes
Headings and boxes used in the Terms are provided for convenience only and will not be used to construe meaning or intent.
14.5 Severability clause
14.6 Date of contract conclusion
The Agreement is deemed concluded by the receival of a confirmation e-mail of the Purchase Order.
Any notification, warning and other notices sent under these GT must be sent by registered letter with acknowledgement of receipt or by express delivery carrier with copy by email. They shall be sent to the Parties’ contact persons.
Any change in address or representative for purposes hereof shall be notified by the Party concerned to the other Party as provided above.
Notifications delivered by registered letter with acknowledgement of receipt or express delivery carrier shall be effective as of their date of first presentation to the addressee.
Notifications delivered by email shall be deemed effective as of the date thereof, provided that they are confirmed on the same day by registered letter with acknowledgement of receipt or express delivery carrier.
14.8 Applicable Law, Steering Committee and Place of Jurisdiction
These GTs and all obligations arising out of them are governed by the Belgian law; the application of private international law and the United Nations Convention on the International Sale of Goods (CISG) shall be excluded.
TRACTEBEL and the Customer agree to form a steering committee to examine any dispute resulting from the performance of the Agreement before taking any legal action and shall undertake their best efforts to settle said dispute. Said steering committee shall be formed of two (2) members from each of the Parties.
Any dispute in relation to the Agreement shall be promptly and as a priority submitted to the steering committee that shall have the power to directly settle any dispute between TRACTEBEL and the Customer.
If the dispute cannot be resolved within twenty (20) Business Days of the submission of the recommendation of the steering committee or sooner if it has become apparent that the Parties will not be able to reach an amicable settlement within such period, then it shall be settled exclusively by the Dutch/French speaking courts of Brussels depending on the language preference of the Customer.