1. Definitions
In these General Terms and Conditions the following definitions will apply to terms written with a capital letter, unless explicitly provided otherwise in a separate agreement between the Parties:
1.1. ‘Client’: any natural person or legal entity and their legal successors and/or associated entities, which engages Sustenuto to provide Services.
1.2. ‘Confidential Information’: any information that is either marked as confidential or by its nature should reasonably be considered as confidential, including without limitation, advice provided by Sustenuto, trade secrets, know-how, and other business information such as plans, unpublished patent applications, concepts, procedures, services, strategies, and personal data of a Client, its employees, agents, appointees, directors, affiliated companies, (sub)contractors, contracting parties or third parties to whom a Party is bound by confidentiality.
1.3. “Deliverables”: the results of the performance of the Services including, without limitation, notices, models, templates, forms, advice, strategies, suggestions, communications, reports, documents or other materials provided by Sustenuto in provision of the Services.
1.4. ‘Services’: all services provided by the Service Provider, including without limitation, study, advice, support, or other services relating to the development of sustainability in organisations, products, and brands, including but not limited to the assessment of services for certification (e.g. Cradle 2 Cradle & B Corp) and which may or may not be the subject of a specific agreement concluded between the Client and Sustenuto.
1.5. ‘Sustenuto’ or ‘Service Provider’: Sustenuto BV, with registered office at Impact House, Jozef II Straat 20, 1000 Brussels, with company number 0875588613.
1.6. ‘Force Majeure’: any unforeseeable event beyond the control of the affected Party that cannot be attributed to one of the Parties and that completely impedes the performance of their obligations. Unforeseeable events include in a non-exhaustive manner: pandemics, epidemics, measures imposed by governments, illness or incapacity to work of employees or personnel, strikes or any other interruption of services at third parties that Sustenuto relies on, computer, electricity, telephone and fax failures, failures in power supply and other similar events. For the avoidance of doubt, in relation to the Client's payment obligations, only a systemic failure of the financial system shall constitute Force Majeure.
1.7. ‘Party’: Sustenuto or the Client, they are referred to jointly as ‘Parties’.
1.8. The terms ‘Personal Data’, ‘Controller’, ‘Processor’, ‘to Process / Processed / Processing’,’ Personal Data Breach’ and ‘Data Subject’ have the same meaning as in Article 4 of Regulation (EU) 2016/679 of the European Parliament and of the Council (hereinafter the ‘GDPR’).
2. Scope and enforceability
2.1. These General Terms and Conditions apply to all Services that Sustenuto provides to its Clients. Placing orders, awarding assignments, or otherwise purchasing Sustenuto's Services implies acknowledgment and acceptance of these General Terms and Conditions applicable to the Services by Client.
2.2. These General Terms and Conditions, together with any agreement concluded between the Client and Sustenuto, form the entirety of all arrangements and agreements between the Parties regarding the subject matter. They replace all other arrangements and agreements that may exist between the Parties with regard to the Services.
2.3. The application of any general and specific terms and conditions of the Client to its relationship with Sustenuto is expressly excluded, regardless of when Sustenuto was notified thereof and without the requirement of any objection by Sustenuto. Under no circumstances will any general and specific terms and conditions of the Client be deemed to have been implicitly or tacitly accepted by Sustenuto.
2.4. Only (i) a written and explicit acceptance by Sustenuto of any deviations from these General Terms and Conditions, or (ii) an acceptance of different terms and conditions where Sustenuto has stated in writing and explicitly that these different terms and conditions will apply in place of these General Terms and Conditions, or (iii) any deviation by way of a specific agreement to the contrary between the Parties, can be invoked against Sustenuto. These General Terms and Conditions will nonetheless continue to apply in addition to the deviations or conditions to the contrary accepted by Sustenuto insofar as they are not incompatible with each other.
2.5. In the event of any conflict between these General Terms and Conditions and a specific agreement between the Parties, the specific agreement between the Parties will prevail over the General Terms and Conditions with respect to the Services to which the specific agreement relates.
2.6. Sustenuto reserves the right to amend these General Terms and Conditions at any time. The amended General Terms and Conditions will come into effect thirty (30) calendar days after notification thereof to the Client or publication thereof on Sustenuto’s website. In the event of a written objection against the amended General Terms and Conditions within fifteen (15) calendar days after the notification, the General Terms and Conditions will remain in force for the provision of the Services that the Client has accepted in relation to those Services.
3. Conclusion of an agreement
3.1. Each quotation or cost estimate remains valid for one (1) month, unless otherwise stated, and is deemed accepted by the Client if the Client has signed it, proceeds to pay the required deposit, or confirms in writing or by email (the "Acceptance"). By Acceptance of the quotation or cost estimate, the Client commits to the full purchase of the quoted or estimated Services. However, the Client's Acceptance only becomes binding after confirmation of acceptance by the Service Provider. This confirmation is considered to be implicitly given if the Service Provider issues the Client with a deposit invoice in accordance with Article 11.3, or when the Service Provider commences the performance of the Services.
3.2. The Client is liable for the correctness and completeness of the information it supplies. The quotation or cost estimate is drawn up in accordance with the information provided by the Client. In case of incomplete or incorrect data, Sustenuto reserves the right to unilaterally adjust the prices indicated, without the Client being able to terminate the agreement. The adjustment will be charged without prior notification of the Client being required.
3.3. Changes to the assignment, of whatever nature, by the Client, after the agreement has been concluded, must be notified by the Client to Sustenuto in good time and in writing and must be accompanied by a clear description of the Services to be provided. These changes will only be considered final after written confirmation by an authorized representative of Sustenuto.
3.4. Additional work, not stated in the quotation, cost estimate or similar notification, nor in the agreement, will be charged separately on the basis of the working hours performed and any additional costs at the standard hourly rate applied by Sustenuto at that time applicable to the Services concerned, unless explicitly agreed otherwise between the Parties.
4. Provision of Services by Sustenuto
4.1. Client acknowledges and agrees that Sustenuto undertakes all reasonable efforts to provide the Services and fulfil its obligations under these General Terms & Conditions, without any guarantee of a specific outcome or result, which is intended to refer to the Belgian law concept of a means obligation (in Dutch: “middelenverbintenis”; in French: “obligation de moyen”). Notwithstanding the foregoing, the Service Provider shall be subject to an obligation of results (in Dutch: “resultaatsverbintenis”, in French: “obligation de résultat”) with respect to the Deliverables specifically enumerated and agreed upon by the Parties in the agreement.
4.2. Service Provider warrants to the Client that the Services shall be performed in a professional, workmanlike manner, consistent with generally accepted industry standards.
4.3. Notwithstanding the foregoing, the Services and Deliverables are provided on an “as-is” basis and without any warranty that they will be free from errors. To the extent permitted by law, no other warranties are provided including any implied warranties relating to the Services and Deliverables, including any warranties of non-infringement, suitability for a particular purpose, or functionality.
4.4. Service Provider will organize and perform the Services independently and autonomously. Sustenuto will draw up its agenda independently, on the understanding that it will strive to comply with any agreed delivery terms for the Services & Deliverables. However, these delivery terms are always approximations and do not imply any obligation of result for Service Provider. They only commence after Service Provider has received all useful and relevant documents relating to the provision of the Services from Client and after Service Provider has received any agreed (partial) payment.
4.5. The Client undertakes to cooperate in good faith with Sustenuto and to provide it in a timely manner with all necessary and/or useful documents and information related to the provision of the Services. It is the responsibility of the Client to ensure that the information provided does not infringe intellectual property rights or any other claim of third parties.
4.6. The provision of the Services is entrusted within Sustenuto to one or more personnel members, taking into account as much as possible the complexity of the Services to be performed and the experience and specialization of the personnel concerned. This assignment does not in any way give an intuitu personae character to the performance of the Services, and Sustenuto expressly reserves the right, at its sole discretion, to assign the performance of the Services to another personnel member, without any recourse being open to the Client regarding this matter.
4.7. If it is explicitly agreed the Services are provided at the Client’s offices, the Client must provide office equipment, a connection to the Internet and where necessary a connection to local servers with the necessary authorizations, as well as the necessary materials and documents to enable the personnel to properly provide the Services.
4.8. Without prejudice to the foregoing and the provisions of Article 16 (Force Majeure), Sustenuto has the right to suspend without prior notice of default the performance of its obligations if the Client fails to fulfil its obligations for any reason.
5. Client’s obligations
5.1. Client shall indemnify, defend and hold the Service Provider against claims by third parties for (i) damages resulting from contractual or non-contractual breaches due to the actions or omissions of the Client or its personnel, (ii) infringement of the rights of third parties, including their Intellectual Property Rights, by the Client or its personnel, (iii) a failure on the part of the Client to provide proper resources for the Service Provider, (iv) damages resulting from instructions given by the Client or resources provided by the Client, and (v) damages arising from the Client’s use of the Deliverables, except where such damages are a result of a breach by the Service Provider.
6. Intellectual Property
6.1. Each Party shall remain the exclusive owner of all its respective intellectual property rights, including but not limited to, copyrights, trademarks, patents, trade secrets, and any other proprietary rights, whether registered or unregistered, owned, developed, or generated by it before or outside the scope of the agreement. For the sake of clarity, Client acknowledges and agrees that Service Provider’s methodologies, materials, know-how, processes, techniques, and all associated intellectual property rights utilized in the provision of the Services shall remain the sole and exclusive property of the Service Provider. Nothing contained in this Agreement shall be deemed or construed as assigning, transferring, or granting any rights, title, or interest in or to such intellectual property to the other Party, expect to the extent required the perform the Services.
6.2. Notwithstanding the foregoing, the Service Provider, upon full payment of fees by Client, hereby assigns and transfers to the Client, without any restrictions or reservations, all worldwide right, title, and interest in and to the intellectual property rights in the Deliverables specifically created, developed, or produced for the Client. Service Provider agrees to promptly execute any additional documents, at the Client's cost, to evidence, record, or perfect the Client's ownership. Without prejudice to the transfer of rights that should enable the Client to exploit the Deliverable in a normal manner, the Contractor shall, in any case, retain the right to use the knowledge gained during the performance Services in other projects or with respect to other clients. To the extent necessary, these terms shall be deemed a royalty-free licence in favour of the Service Provider for the entire duration of the relevant right, and without limitations on forms of exploitation, applications, and territories.
7. Rates and payment methods
7.1. Unless the Parties agree on a different payment arrangement in writing, the Services provided by Sustenuto will be invoiced on the basis of the rates and expenses indicated in the quotation.
7.2. All day rates are exclusive of travel expenses, any translation costs, VAT, any bank charges and all other direct or indirect charges.
7.3. The Client is obliged to pay 50% of the total amount of the quote or 50% of the estimated amount as an advance. This amount may be invoiced by the Service Provider prior to commencing the Services, but nothing prevents the Service Provider from invoicing this advance at a later time or foregoing their right to invoice an advance. The remainder of the amount due will be invoiced after the completion of the Services. If the Services provided are divisible into different components or, as the case may be, Phases are determined, the Service Provider will invoice the amount due in parts and pro-rata upon delivery of the respective components or upon completion of the respective Phases.
7.4. Each invoice must be paid no later than thirty (30) calendar days after the invoice date, by payment to the Service Provider's account number or payment method stated on the invoice. Any complaints about the invoicing modalities must be communicated in writing to the Service Provider within seven (7) calendar days of the invoice date, failing which the invoices shall be irrevocably deemed accepted.
7.5. If an invoice is not paid in full within the payment term, the Client shall be liable, as of right and without prior notice of default, for a late-payment interest on the invoice amount at the rate of 1% per month commenced.
7.6. All costs and expenses, including but not limited to attorney's fees, court fees and extrajudicial costs and collection costs, which Sustenuto would incur in collecting outstanding invoices will be at the expense of the Client. This also applies to the costs of defence against counterclaims.
7.7. The Client’s right to set-off its claims against Sustenuto from unpaid invoice amounts is expressly excluded.
7.8. The prices of rates and costs agreed for the Services are adjusted annually on 1 January of that year automatically and without prior notice to the Client, commensurate with the total percentage increase of the Belgian wage cost index, according to the following formula:
P1 = P0 x (0.2+ 0.8 x (S1 / S0))
Where:
P1 = Effective rate after indexation
P0 = Rate (base year)
S1 = Effective wage costs in the month of December preceding the adjustment (cf. reference wages Agoria).
S0 = Effective wage costs in the month of December preceding the conclusion of the contract (cf. reference wages Agoria).
8. Complaints and liability
8.1. Any complaints about the Services or Deliverables provided must be received at the registered office of Sustenuto by registered letter no later than eight (8) calendar days after the Services or Deliverables have been provided. In the absence of any justified complaints within this period, the Services & Deliverables provided will be considered sufficient and any further recourse is excluded. Sustenuto is always entitled to substitute a new sufficient performance in place of a previous insufficient performance, without the Client being entitled to compensation, unless the default should prove irreparable.
8.2. Except in the event of gross negligence or intent, any liability of Sustenuto is limited to the value of the assignment from which this liability arises and is in any case limited to a maximum of € 25.000,-.
8.3. Sustenuto is in no way liable for any indirect damages, including but not limited to consequential damage, loss of profit, loss of turnover, loss of income, personnel and administration costs, loss of customers, third-party claims, punitive damage or damage resulting from force majeure. Under no circumstances can Sustenuto be held liable for errors or inaccuracies in the documents or advice drawn up by it, if these are due to a lack of information or incorrect information provided by the Client.
8.4. Sustenuto is not responsible for loss, damage or destruction of documents or objects during transport or shipment, regardless of whether this is done by or on behalf of Sustenuto or third parties.
8.5. As provided for in Article 4.8 Sustenuto has the right to suspend the performance of its obligations if the Client fails to perform its obligations for any reason. Sustenuto is not liable in this context for the possible damage that may result from this.
8.6. The Client indemnifies Sustenuto against claims by third parties for damage due to contractual or extra-contractual shortcomings as a result of the actions or negligence of the Client or its employees, directors, appointees, (sub)contractors, affiliated companies, suppliers, customers and agents.
9. Personal Data
9.1. The Processing of Personal Data by Sustenuto as Controller takes place in accordance with the provisions set out in the Cookie and Privacy Policy. Sustenuto may process the identification and contact details of the Client and/or its personnel for the purpose of customer administration, bookkeeping and the management of any disputes.
9.2. For more information about the Processing of Personal Data and the way in which Data Subjects can exercise their rights, the Client should consult the Privacy Statement. The Client will inform its personnel about this.
9.3. The Client guarantees that it has a sufficient legal basis to transfer the Personal Data and to provide the Data Subjects with this information regarding the processing, including reference to the Privacy Statement.
9.4. Sustenuto does not act as Processor with respect to the Client during the provision of the Services. If, on the basis of a clear written request from the Client and written approval from Sustenuto, Personal Data is nevertheless Processed by Sustenuto as Processor, this will be done on the basis of the provisions set out in the processor agreement that can be added by Sustenuto as an Annex (DPA) to these General Terms and Conditions.
10. Recruitment of workforce or employees
10.1. In the event that the Client engages in the recruitment or collaboration with any employee of Sustenuto during the time in which Services are being provided by Sustenuto, or within a period of one year following the termination of such Services, the Client shall be deemed to have accepted full legal responsibility and shall be immediately subject to the payment of an incontestable compensation to Sustenuto, in the amount of €25,000. This obligation shall be enforceable without the requirement of any prior formal notice or declaration of default. Notwithstanding the foregoing, should Sustenuto provide its explicit written consent to the Client for the recruitment or collaboration with the specific employee in question, the aforementioned compensation obligation shall not be applicable.
11. Confidentiality
11.1. The Parties undertake to maintain complete confidentiality with regard to all Confidential Information provided by the disclosing Party. Under this confidentiality, the Parties will maintain a level of protection commensurate with the sensitivity and commercial value of the relevant Confidential Information, but the Parties will at all times maintain at least a reasonable level of protection for all Confidential Information.
11.2. The Parties acknowledge that the direct or indirect provision of Confidential Information under these General Terms and Conditions does not constitute a transfer of ownership of the Confidential Information, nor does it imply any granting of rights, except as expressly provided otherwise in these General Terms and Conditions or any other agreement between the Parties.
11.3. The Parties will only use the Confidential Information received and only provide it to employees, directors, appointees, agents, (sub) contractors, consultants and affiliated companies to the extent necessary for the performance of assignments. The Parties guarantee and warrant that all employees, directors, appointees, agents, (sub) contractors, consultants and affiliated companies to whom Confidential Information of the disclosing Party is disclosed are bound by a confidentiality obligation that is at least as strict as the confidentiality obligation imposed in this Article 12.
11.4. The confidentiality obligation imposed in this Article 12 does not apply to the extent that the receiving Party can demonstrate that the information received: (i) is generally available to the public or has become generally available to the public, without any fault or negligence in this regard on behalf of the receiving Party or its employees, directors, officers, agents, (sub) contractors, consultants and affiliated companies; or (ii) was duly owned or known by the receiving Party prior to receipt from the disclosing Party; or (iii) has been validly provided without a confidentiality obligation to the receiving Party by a third party who has no obligation of confidentiality towards the disclosing Party; or (iv) was independently developed by the receiving Party without access to Confidential Information or without using any Confidential Information of the disclosing Party for this purpose; (v) was expressly identified as non-confidential by the disclosing Party; or (vi) must be released or communicated on the basis of a legal obligation or court order, provided that the receiving Party notifies the disclosing Party of this obligation as soon as possible, consulting with it first about the mandatory release if possible and that the provision of such information is limited to the minimum required by law or by court order.
11.5. Upon termination of the agreement, the receiving Party undertakes to return (copies of) the Confidential Information to the disclosing Party or to destroy it, in accordance with the disclosing Party’s wishes or as the Services require. Notwithstanding this, Sustenuto reserves the right to destroy (copies of) the Confidential Information if returning (copies of) the Confidential Information would create a disproportionate burden on the part of Sustenuto.
11.6. This Article 12 will survive the termination of the agreement between the Parties for a period of five (5) years after termination. Notwithstanding this, at the end of this period, this Article 12 will continue to apply to trade secrets disclosed by the disclosing Party to the receiving Party for as long as the trade secrets retain their secrecy. For the sake of clarity, any breach of this Article 12 by the receiving Party will not alter the confidential character of these trade secrets.
11.7. The provisions of this Article 12 apply in full to training courses organized by Sustenuto. The Parties acknowledge that all delivered works remain the exclusive property of Sustenuto. Material distributed during these courses will not be copied, redistributed or resold by the receiving Party, except for the previously agreed number of copies. These materials include, but are not limited to handouts, reports, images and text documents. These materials are for internal use only by the receiving Party. The receiving party also warrants not to remove any copyright marks and disclaimers or other terms and conditions applied by Sustenuto to the materials.
12. Termination of the Services by the Client
12.1. Unless otherwise agreed in writing, the Client can cancel the agreement to provide Services at any time by means of a letter addressed to Sustenuto with due observance of a notice period of thirty (30) calendar days which is deemed to commence on the date of receipt of this letter by Sustenuto. In this case Sustenuto retains all advances already paid and the right to invoice the Client with regard to services still to be delivered within the notice period. This is without prejudice to the provisions of article 4.
12.2. The Client has the right to terminate the agreement in the event of a breach of contract by Sustenuto, subject to duly substantiated motivation and a prior notice of default granting Sustenuto a grace period of thirty (30) calendar days. If the breach of contract is not rectified within this period, or if rectification would prove impossible, the agreement will be terminated automatically and without further notice of default.
13. Termination of the Services by Sustenuto
13.1. Unless otherwise agreed in writing, the Parties can terminate the agreement to provide Services at any time by means of a letter to that effect addressed to the other Party and subject to a notice period of thirty (30) calendar days that is deemed to commence on the date of dispatch of this letter by the Party wishing to cancel the agreement.
13.2. If the Client does not fulfil its obligations, Sustenuto has the right to terminate the agreement for the provision of Services, without losing the right to payment for Services already provided and without prejudice to the right to compensation and late-payment interests as stipulated in Article 7, and the right to claim additional damages. The Client will be given notice of default via email or letter, granting it a grace period of thirty (30) calendar days. If the breach of contract is not rectified within this period, or if rectification would prove impossible, the agreement will be terminated automatically and without further notice of default.
13.3. If the Client finds itself in one of the following situations, Sustenuto has the right, without prejudice to Article 14.2, to terminate the agreement to provide Services via email or letter with immediate effect, without any right to compensation on the part of the Client: bankruptcy, death, voluntary or forced dissolution, liquidation, collective debt settlement or insolvency of the Client; in case of judicial reorganization; when the Client is declared incapacitated or placed under administration; when Sustenuto has reasonable grounds to doubt whether the Client will perform its obligations to Sustenuto.
13.4. In the event of termination, Sustenuto's right to claim compensation for costs, interest and damages as stipulated in Article 7 (Rates and payment methods) survives and all claims of Sustenuto against the Client become immediately due and payable.
14. Publicity
14.1. In the context of the provision of Services, Sustenuto reserves the right to quote from communications between the Parties and to use the Client's brands, trade names, slogans and logos as reference in its communication through any medium.
15. Force Majeure
15.1. Sustenuto cannot be held liable in any way if it cannot perform its obligations or perform them on time as a result of Force Majeure. Sustenuto will inform the Client as soon as possible about the nature of the Force Majeure and its likely duration. From that moment on, the performance of the obligations affected by the Force Majeure will be suspended for the duration of the Force Majeure, without the Client being able to claim any compensation.
15.2. If the Force Majeure lasts longer than two months or is of a permanent nature, both Parties are authorized to terminate the Agreement by means of a registered letter to that effect, without further notice and without any right to compensation arising from this for the other party.
15.3. If Sustenuto has already provided a number of Services at the commencement of the Force Majeure, or can only provide part of the Services, or has incurred costs, it is entitled to invoice the part of the Services already provided, as well as the costs incurred and the Client is obliged to pay this invoice in full.
15.4. The obligation of the Client essentially constitutes a payment obligation, for which Force Majeure is explicitly excluded.
16. Miscellaneous
16.1. If any provision of these General Terms and Conditions is declared null and void or unenforceable, this will not result in the avoidance of the rest of the General Terms and Conditions or other agreements existing between the Parties. The invalid or unenforceable provision will be replaced by a new and enforceable provision that is as close as possible to the original provision or is reduced to the maximum that is legally permitted.
16.2. The Client acknowledges and accepts that Sustenuto also performs Services for third parties.
16.3. No right or obligation under an agreement between the Parties may be transferred by one Party to a third party without the prior consent of the other Party.
16.4. Sustenuto's failure to exercise its right to demand strict compliance with these General Terms and Conditions or any other agreement between the Parties cannot be considered a waiver of any right or waiver of Sustenuto's right to demand strict compliance in the future.
17. Applicable law and competent court
17.1. Belgian law applies to the General Terms and Conditions, the provision of Services and any other agreement between the Parties, with the exclusion of the rules of Private International Law and other rules of any nature whatsoever that would make another law or other legal rules applicable.
17.2. All disputes with regard to the General Terms and Conditions, the provision of Services and any other agreement between the Parties will be submitted exclusively to the competent courts of the judicial district of Ghent.