General terms and conditions

 1- Scope

These general terms and conditions of the Centre (hereinafter referred to as "Terms") apply to any testing and metrology Deliverable provided by the Centre (hereinafter referred to as "Deliverable"). They supersede any other terms and conditions and, in particular, any terms and conditions of sale of the Client. The Centre is bound by no other text without written agreement, signed by an authorised representative of the Centre.

2 - Conclusion of the contract

Any test or metrology service offer (hereinafter referred to as "Service offer") made to a client (hereinafter referred to as "Client") by the Centre is valid from the date the Service offer is signed by the Centre and during the period of validity indicated therein.

The signing of such a Service offer by the Client within this period of validity indicates irrevocable acceptance by the Client of such a Service offer and the General Terms of Sale (GTS). This Service offer and the GTS both thereby constitute the applicable contract between the Client and the Centre (hereinafter referred to as "Contract") for the Deliverable in question (hereinafter referred to as "Deliverable"). The Centre and Client are hereinafter referred to individually as "Party" and collectively as the "Parties".

If a Service offer is not signed, it automatically lapses on the date the period of validity expires, which is however without prejudice to the rights of the Centre in respect of the Client (particularly, right to payment), if the Centre has started the Deliverable, following a request, or with the unequivocal consent of the Client (proof of such a request and/or consent being validly reported, notably, by a copy of an e-mail).

The signing of a Service offer by the Client, after the period of validity has expired, renders such a Service offer ineffective and the lapse of the service offer is not resolved unless, on the date the Client signed the Service offer, the Centre has already started the Deliverable following a request or with the unequivocal consent of the Client. In this case, the Service offer becomes or remains valid and the contract is retroactive to the date when the Service was started, if there is no other date agreed upon between the Centre and the Client.

In any event, the lapse of a Service offer does not prevent the Centre from proposing, where applicable, a new Service offer to the Client.

Any Service offer from the Centre which is not in writing and contains no period of validity is considered to be made without the commitment of the Centre.

3 - Responsibility

The Centre assumes the responsibility of performing the Service as defined in the present Agreement, under the terms and within the limits presented hereafter.

- The Centre agrees to provide the Service in a professional manner, according to professional standards and practices, subject to fulfilment by the Client of its own obligations within the context of the present Agreement.

- The Centre cannot be held responsible for damages related to the use and/or utilization of the results of the Service (including possible deliverables) by the Client or by a third party.

- The Centre cannot be held responsible for damages related to any modification of the results of the Service (including possible deliverables) or to any addition to said results made by the Client or a third party.

- The Client is solely responsible for items of any type that it may provide to the Centre for the performance of the Service or for integration into the results of the Service (including possible Deliverables), whether or not these items belong to the Client or to a third party who has granted the latter the necessary rights and authorizations. In the event that such items, their use for the Service or their integration into the results of the Service should cause damage to the Client or to a third party, the Centre cannot be held responsible.

- In the cases stated in the three preceding paragraphs where the Centre cannot be held responsible, the Client agrees to hold the Centre harmless with regard to any action that may be taken against it by a third party, and to compensate the Centre for all financial consequences that may ensue.

- The Centre is not responsible for delays or failures in the performance of the Service, and more generally, in the performance of the present Agreement, which are the result of delays or failures on the part of the Client in the performance of its own obligations under the terms of the present Agreement (for example, in case the Client does not send the Centre the information, documents, material and/or software items or other items necessary for the start-up and/or the proper performance of the Service by the Centre).

- The Centre is not responsible for damages caused to the Client and delays or failures in the performance of the present Agreement if the damages, delays or failures are the result of the Client's fault or negligence or when they are caused by cases of force majeure or events beyond the reasonable control of the Centre, as defined in the article 13.

- If the present Agreement cannot be implemented, totally or in part, due to causes outside the will of the Centre, the latter cannot be held responsible.

In no case is the Centre responsible for indirect or unforeseeable damages suffered by the Client. As expressly agreed between the Parties, indirect damage is considered to be, in particular, any financial or commercial damage, loss of business, profit, data, orders or clientele, as well as any action directed against the Client by a third party. - In any event, if the Centre is held responsible by the Client and acknowledged as such, under the terms of the present Agreement for direct damages suffered by the Client, the latter's right of repair will be limited, all things considered, to the amount owed by the Client to the Centre under the terms of the Service.

- As expressly agreed, the Parties concur that the present clause will continue in case of cancellation, as well as in the case of a legal termination of the present Agreement, including the case of a total termination granted to the detriment of the Centre.

4 - Guarantees

If carrying out the Service involves the integration into Deliverables, or other results of the Service, of third party hardware and/or software, the Centre shall not provide any guarantee covering these components, unless otherwise agreed upon by the Parties in Appendix of this present Agreement. In such cases, only the guarantees offered by these third parties may be requested by the Client; the procedures and terms (especially financial terms) for granting any such guarantees must in all cases be agreed upon in Appendix "Special Conditions".

5 - Proper performance of the Service

If the Client feels the performance of the Service is not progressing according to the terms defined in the present Agreement, and this risks is posing a problem, or if there is a serious risk that the contractual deadlines will not be met, the Parties agree to come to a decision in order to define and set up an appropriate solution as soon as possible.

In the absence of such a solution, the Client must report this in writing to the executive director of the Centre as soon as possible, at the following address:

Executive Director Luxembourg Institute of Science and Technology
5, avenue des Hauts Fourneaux
L-4362 Esch-sur-Alzette

6 - Payment terms

In the absence of contrary provisions accepted by the Centre, invoices shall be payable 30 days from the invoice date. In case of late payment by the Client, the Centre shall be authorized to suspend execution of the Service, without formalities or warning. The rates and fees applicable to invoices shall be those in force on the invoice date. All Services started by request or with the unequivocal consent of the Client must be paid by the latter without any opposition for failure to sign the tender or for the lack of a valid tender, or for absence of a purchase order or lack of a contract. If necessary, proof of such a request and/or of such unequivocal consent may validly be reported, in particular by a copy of an e-mail. In the case of partial disagreement on invoices, the Client must pay the uncontested part of the invoice by the due date listed on the invoice.

7 - Transfer of ownership and intellectual property rights

Unless otherwise agreed in writing between the parties, the material ownership of the Deliverable(s) is only transferred to the client, in any case, after complete payment by the latter of the total amount due in return for the Service. If the Deliverable includes or consists of an asset, hardware and/or software, transfer of the associated risks to the Client takes place at the time the Deliverable is delivered to the Client.

If the results (including the Deliverables) of the Service give rise to copyright, the Centre transfers said rights to the Client, namely the rights of reproduction, translation, adaptation and communication to the public (by any process) of these results. This transfer is only valid upon complete payment of the total amount due by the Client in return for the Service (this amount including the transfer price), for the whole world and for a period of time equal to the duration of copyright protection as laid down by Luxembourg legislation.
If applicable, the attached special conditions may depart from the previous paragraph.
If inventions, trademarks, software, tools, methods or know-how belonging to the Centre independently of this agreement, whether or not the subject of specific protection (copyright, patents, trademark, etc.), are used by the Centre for or during execution of the Service, they remain the Centre's exclusive property. In any case, the Centre also remains the owner of the tools, methods or know-how created or developed during execution of this agreement and which are not identified in the Service's Deliverables.

It is expressly agreed between the parties that in any case, the client may not and will not be able to oppose the use by the Centre, in particular as part of its research activities, of information arising from carrying out the Service.

8 - Protection of personal data

Within the context of the performance of the present Agreement, the Parties agree to abide where necessary by the provisions of the Law of 2 August 2002 on the Protection of Persons with regard to the Processing of Personal Data, as modified.

9 - Modifications

Any modifications to the present Agreement must be made through an amendment signed by the Parties. 10 - Confidentiality The Parties recognise that, as part of and in the execution of this Agreement, proprietary information and material of any kind that is confidential and protected, where applicable, by intellectual property (hereinafter referred to as "Confidential Information") may be disclosed by one Party to the other Party.

Confidential Information refers to the information and materials of any kind expressly designated as confidential by an appropriate written statement, and the information and materials which, by their nature, their content, and/or the circumstances under which they were disclosed, would reasonably be regarded as confidential by a person familiar with the subject of the Project or this Agreement. Confidential Information shall also cover, where applicable, and without this list being exhaustive: ideas, methods, procedures, processes and scientific and/or technical knowledge, tests, functional and technical specifications, computer programs, and strategies, contracts, financial information - accounting or business or related to personnel, assets, compensation, partners, customers or competitors.

The Parties intend to use the Confidential Information for the purposes of executing the Project and this Agreement.

However, the Parties, recognising that the disclosure of Confidential Information may cause harm, have agreed to the confidentiality agreement as hereinafter defined.

Each Party undertakes:

1. to not directly or indirectly divulge, in any form whatsoever, without the express written consent of the other Party, any Confidential Information received from the latter, to any third party or person, except its own employees whose knowledge of the Confidential Information is required as part of this Agreement and who are themselves bound by a similar confidentiality agreement; 2. to not use any Confidential Information received from the latter, without the express written consent of the other Party, beyond what is strictly necessary to execute their obligations under this Agreement ; 3. to affix a "confidential" stamp or any other suitable equivalent on all documents and copies concerning the Deliverable and which may require the stamp; 4. to return to the other Party, at their request and as quickly as possible, all Confidential Information and any copies thereof that the other Party has distributed.

The confidentiality agreement as defined in this Article takes effect on the date this Agreement is signed for the duration of the latter and will be effective for five (5) years after its expiration.

Exclusions

The following will not be considered confidential; information which:

- is clearly in the public domain on the date of disclosure by one Party to the other Party;

- will be in the public domain following that date of disclosure, other than by breach of the confidentiality agreement previously defined;

- the receiving Party can demonstrate, with supporting documentation, that they were already lawfully in possession or knew of the information at the time of disclosure by the other Party, or that they developed the information independently;

- was subsequently received from a third party with the right to use the information; - the disclosure of, and use by, an identified third party was previously and expressly authorised in writing by the other Party, as outlined above in the sub-item "Confidentiality";

- must be disclosed in accordance with applicable laws or regulations. Special provisions The provisions of this "Confidentiality" article outlined above may not prevent:

- the Centre from producing, if applicable, an activity report to the supervisory authority of the program for the Project;

- where applicable, the defence of a thesis by one or more researchers employed or received by the Centre, whose research activity is related to the subject of the Project;

- either Party from mentioning, for the purposes of internal or external disclosure, the existence of this Agreement unless otherwise agreed by the Parties. In this context and unless otherwise agreed by the Parties, a brief description of the Project may be distributed. Any communications proposed by a Party beyond this brief description must be subject to prior agreement from the other Party before being implemented.

11 - Duration

The duration of the Agreement is defined in the Bid.

The duration of the Agreement may be extended by an amendment signed by the Centre and the Client, establishing, if necessary, any other modifications and adjustments to the tender made necessary by its extension (e.g. scope of the Service, modification of pricing, etc.).

In all cases, after the expiration of the Agreement or its termination for any reason whatsoever, the provisions and obligations listed in the provisions related to intellectual property rights of the Parties and in the Articles "Responsibility", "Confidentiality", "Applicable Law - Jurisdiction" shall remain in force for a duration that is either unlimited or defined expressly in the article in question.

12 - Termination

Without prejudice to the provisions specified in the article "Force Majeure", in the event one of the Parties fails to meet his obligations and this is not remedied within a period of thirty (30) days as of the day (proved by the postmark) on which the other Party sends a registered letter with acknowledgment of receipt giving notice of the failure(s), the latter can lawfully terminate the present Agreement, without advance notice and without any legal formality, and without prejudice to any damages to which he can make a claim.

The Centre can also terminate the present Agreement without any advance notice or compensation whatsoever if the Client goes bankrupt or is the object of a procedure of reorganization or legal liquidation or any similar type of procedure.

13 - Force majeure

It is expressly provided that the Centre shall not be liable for damages caused to the Client or for delays or breaches in the execution of the present Agreement if these damages, delays, or breaches result from cases of force majeure or events outside the reasonable control of the Centre.

The Parties expressly agree that such cases and events shall include, but not be limited to, the following cases and events: strikes, labour conflicts, social unrest, war, riots, insurrection, bombings, sabotage, fires, floods, natural catastrophes, or breakdowns, neglect, or delays in electrical, transport or communication resources or grids, or IT networks.

Force majeure shall suspend all obligations under the present Agreement for the affected Party for its entire duration. In such cases, the Parties shall do their utmost to limit the consequences.

However, if a case of force majeure lasts more than one (1) month, the present Agreement may be terminated by either of the Parties, without such termination being considered as a fault caused by the Party and without any compensation due for this event.

Notification of termination under such circumstances must be provided by registered letter with advice of delivery and shall take effect on the date the aforementioned letter is received by the other Party. Any sums paid before the effective termination date shall remain forfeited to the Centre, and the Client must pay for any parts of the Service carried out but not yet paid for on a pro rated basis where applicable.

14 - Assignment

This agreement may not be assigned or transferred for any reason and for any purpose whatsoever without the express written consent of the other Party. However, this consent is not mandatory for the Centre in the event of any assignment or transfer of this agreement to the new entity that will exist in Grand-Duchy of Luxembourg, resulting of the consolidation in process between the Centre and other national public research centers.

15 - Applicable Law - Jurisdiction

The present Agreement is subject to the laws of Luxembourg.

In case of disputes, the Parties shall do their utmost to come to an amicable agreement.

In the absence of an amicable agreement between the Parties, any disputes concerning the validity, interpretation, execution, and/or expiration of the present Agreement shall be decided by the sole jurisdiction of the Courts of Luxembourg. 

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