1.1. These are the general terms and conditions (hereinafter: General Conditions) applicable to the services provided by:
– Winger Patents bv with registered office at 9820 Merelbeke, Hundelgemsesteenweg 1116, registered in the K.B.O. under the number 0809.963.559 (telephone: +3293626881, e-mail: email@example.com) and
– Winger Trademarks bv with registered office at 9000 Ghent, Charles de Kerckhovelaan 17, registered with the K.B.O. under the number 0831.271.192 (telephone: +3293302039, e-mail: firstname.lastname@example.org).
1.2. All assignments regarding patents shall be deemed to have been given to and can only be accepted by Winger Patents bv. These assignments only bring about an agreement between the Client or the person equated with the client – as defined in Article 1.5 of these General Terms and Conditions – and Winger Patents bv. The Client accepts that only Winger Patents bv is responsible for these assignments.
1.3. All assignments relating to trademarks, trade names, domain names, designs and copyrights shall be deemed to have been given to and can only be accepted by Winger Trademarks bv. These instructions will only bring about an agreement between the client or the person equated with the client – as defined in Article 1.5 of these General Terms and Conditions – and Winger Trademarks bv. The client accepts that only Winger Trademarks bv is responsible for these assignments.
1.4. Hereinafter, Winger Patents bv and Winger Trademarks bv will be referred to, both jointly and separately, as the Service Provider.
1.5. The term customer shall be understood to refer to the physical or legal person who gives the instructions to the Service Provider to execute the order. Shall be equated with the Customer: the physical or legal person in whose name and/or for whose account the Customer has given the instructions to the Service Provider for the execution of the order.
2. Object of the services provided and applicability of these General Terms and Conditions.
2.1. The services provided by the Service Provider relate to the provision of legal and/or technical advice on intellectual property rights, as well as the obtaining, enforcing and managing of the aforementioned rights. The object of the services shall be agreed upon in writing between the Service Provider and the Customer at the commencement of the assignment.
2.2. Any change or extension of the subject matter of the service during the Service Provider’s execution of the assignment may be evidenced, inter alia, by correspondence, subject to the written acceptance by the Service Provider of the aforementioned change or extension, as well as by acceptance of the result of the service or by payment of the relevant invoice of the Service Provider by the Customer.
2.3. These General Terms and Conditions, which have been brought to the Customer’s attention prior to the provision of the service, shall apply to any offer made by the Service Provider, to any agreement between the Service Provider and the Customer, and more generally to all services provided, or to be provided by the Service Provider. The entrusting of an order to the Service Provider implies the acceptance by the Customer of these Terms and Conditions, both for the order in question and for future orders, subject to any subsequent amendments to these Terms and Conditions, of which the Customer will be duly informed.
2.4. The General Terms and Conditions of the Service Provider apply between the parties, to the exclusion of the general terms and conditions of the Customer, even if they are more recent.
2.5. These General Terms and Conditions shall also apply to anyone who, whether in the capacity of an employee or not, performs work on behalf of the Service Provider, as well as to anyone who performs any assignments for or on behalf of the Service Provider for the legal entities referred to in clause 1.1. This includes the members of the Partnership to the extent that they have legal personality.
2.6. By accepting these Terms and Conditions, the Customer acknowledges that each of these terms and conditions is truly desired and none of these terms and conditions, individually or jointly, creates an apparent imbalance in the agreement between the Service Provider and the Customer.
3. Recourse to third parties.
3.1. The Customer agrees that, for specific (partial) assignments, the Service Provider may call upon other experts in the name and on behalf of the Customer for the execution of the assignment (foreign correspondents, external agents, etc.).
3.2. Recourse to third parties shall be made in the name and for the account of the client, who shall be deemed to have contracted directly with the aforementioned third parties. None of these third parties shall be considered agents, appointees or representatives of the Service Provider. The Customer accepts that these third parties may charge their costs directly to the Customer. Any charges by the third parties to the Service Provider shall be passed on to the Customer. The Service Provider shall not be liable for any acts or omissions of the aforementioned third parties.
4. Execution of the assignment.
4.1. The Customer shall provide the Service Provider with all information and instructions relevant to the execution of the order in a timely manner. If, due to lack of (timely) information or (timely) instructions from the Customer, a deadline threatens to expire, the Service Provider shall not be liable. The Service Provider is entitled to charge to the Customer, any additional costs resulting from the delay according to the usual rates.
4.2. The Customer undertakes to inform the Service Provider immediately of any change in its legal name, address or other contact details. The Service Provider cannot be held liable for any damages suffered by the Customer, if the Customer has not properly informed the Service Provider of such changes.
5. The charging of the fees and expenses.
5.1. The Service Provider’s statement of fees and expenses may include three elements: (i) the honorarium, (ii) handling fees, and (iii) office expenses.
The honorarium includes the hourly rates and flat fees determined by the Service Provider for the agreed services. The hourly rate may be multiplied by a factor which depends on the experience and specialization of the person performing the assignment, as well as the financial importance and the degree of urgency and complexity of the assignment. This factor will be communicated to the client prior to the commencement of the assignment.
Handling fees are the costs incurred specifically for the assignment, such as, among others, official fees, costs of foreign correspondents, external agents or other experts, travel and accommodation costs, costs of translations, costs of courier services, costs of long international telephone calls, costs of large numbers of copies, etc.
Office expenses refer to fixed office costs (office infrastructure, administration, library, file management, telecommunications and IT systems, electronic databases, etc.).
The honorarium, handling fees and office expenses will be increased by VAT at the applicable rate (21%), unless a law or a decree or administrative decision (circular or otherwise), issued for the implementation thereof, provides for an exemption (including a transaction outside the scope of VAT).
5.2. Cost estimates provided by the Service Provider to the Customer are purely indicative in nature and do not include VAT. If, after the conclusion of the agreement, but before the order has been carried out, government fees or rates of third parties or third agencies are changed, the Service Provider shall be entitled to adjust the agreed rate in accordance with said changed rates.
5.3. Unless otherwise agreed in writing between the Customer and the Service Provider, the Service Provider may request the Customer to make an advance payment of fees and expenses, to be agreed upon in advance. If the Service Provider has sent a prior invoice, then the assignment given to the Service Provider shall not be considered final until this invoice has been paid by the Client. The Service Provider shall not commence its work until the prior invoice has been paid. The Customer understands that failure to commence the assignment may or will result in the lapse of intellectual or industrial property rights, in which case the Customer alone is responsible and liable.
5.4. Fees and expenses which are due, shall be charged to the client by means of invoices. This does not preclude the possibility that interim invoices are sent to the Customer for work already performed or expenses already incurred, as well as the possibility that the Customer will be requested to make an additional advance payment in connection with fees and expenses to be incurred that will become due later, or expenses to be incurred on his behalf in the future.
5.5. Invoices may be sent by the Service Provider to the Customer by email (or to the Customer’s designated person or entity) and must be paid no later than the date specified on the invoice. If no payment term is specified on the invoice, the invoice must be paid no later than 30 days after the invoice date.
5.6. Complaints relating to errors in the execution of the assignment by the Service Provider must be received in writing by the Service Provider within 7 days after the Customer could reasonably have discovered these errors. Complaints regarding any invoice must be received in writing by the Service Provider within 7 days of the invoice date. In the absence of a timely receipt of these complaints, the Service Provider’s work and/or invoices shall be deemed to have been accepted.
5.7. If an invoice is not paid within the payment period, the Customer shall be liable by law and without any prior notice of default being required, to pay interest on the outstanding sum at the rate of 10% per month, with part of a month being considered a full month. If payment is not made even after a reminder, including payment of both the principal sum and the interest on arrears, the customer shall be liable to pay liquidated damages amounting to 15% of the invoice amount, with a minimum of EUR 150.
5.8. If the invoice was issued in the name of a third party at the Customer’s request, the Customer shall remain liable, both jointly and separately with the third party, vis-à-vis the Service Provider, for compliance with all obligations arising from the contract and these General Terms and Conditions. It is the responsibility of the Customer concerned and the designated third party to correctly process the payment of fees and expenses in their accounts (e.g. via current account). The Service Provider assumes no responsibility in this regard.
6.1. The Service Provider guarantees that it will execute the agreed upon assignment to the best of its abilities and in compliance with the rules of conduct customary in professional practice.
6.2. The Service Provider does not guarantee the accuracy or completeness of information provided to it by the Customer and accepts no liability in this respect.
6.3. The Service Provider does not accept any liability for any inaccuracy and/or incompleteness of literary sources, databases (such as trademark databases, patent databases, design databases and case law databases) and registers consulted by the Service Provider.
6.4. The Customer acknowledges that the Service Provider’s work is advisory in nature. The Service Provider does not accept any liability regarding its work related to subjective aspects of its assessment.
6.5. Electronic correspondence originating from the Service Provider shall be deemed to have been received by the addressee to the extent that the Service Provider has not received notification that the correspondence was not delivered to the addressee. The Service Provider shall in no way be liable for any direct or indirect damage resulting from the non-receipt of the electronic mail by the addressee.
6.6. The Service Provider shall only be liable for the damage that is the direct consequence of a concrete, proven, intentional or serious fault and shall not be liable for indirect or consequential damage.
6.7. The Service Provider’s liability shall, in any case, be limited to the amount to which the liability insurance taken out by the Service Provider gives claim and which is specifically covered by the insurance and is effectively paid out by the insurance company. If, for any reason, the professional liability insurer does not cover the damage, the Service Provider’s liability shall be limited to a maximum compensation (total of principal, costs and interest) in the amount of the value of the performed assignment, which shall be determined on the basis of the invoices drawn up by the Service Provider for the assignment in question.
6.8. The Service Provider shall not be liable for damages resulting from a breach of confidentiality of communications made by email at the request of or with the tacit or explicit consent of the Customer.
6.9. Any claim against the Service Provider shall expire after one year from the time the assignment which the claim relates to has been or should have been completed.
6.10. If the limitations of liability included in this clause would in any way exceed the permissible legal limitation, the Customer shall refrain from claiming nullity of these conditions. In such case, the limitations set forth in this clause shall be reduced/moderated to the maximum permitted within the applicable legal limitation.
7. Suspension and termination of the agreement.
7.1. The Service Provider shall be entitled to suspend its services with immediate effect if the Customer fails to fulfill one or more obligations arising from the Agreement in a timely and proper manner. Such suspension shall under no circumstances give rise to any liability on the part of the Service Provider. The Customer understands that suspension of the assignment may or will result in the lapse of intellectual or industrial property rights, for which the Customer is solely responsible and liable.
7.2. If, during the performance of an assignment, it becomes apparent that a substantial conflict of interest may arise with a prior assignment from another customer, the Service Provider shall be entitled to terminate the later assignment, without any right to compensation on the part of the Customer.
7.3. The Service Provider shall have the right to terminate the agreement with the Customer at any time, with immediate effect, without prior judicial authorization, and without payment of any damages in the following cases: (i) if the Customer fails to perform one or more obligations arising from the Agreement in a timely and proper manner, (ii) if confidence in the Customer’s creditworthiness is shaken by acts of judicial execution against the Customer or by cessation of payment or application for insolvency proceedings, (iii) in the event of liquidation or discontinuation of the Customer’s business.
8. Amendment of the General Terms and Conditions.
The Service Provider reserves the right to amend these General Terms and Conditions at any time, in which case the amended text shall be notified to the Customer. In the absence of written protest within fourteen days of notification of the amended text, the Customer shall be deemed to have agreed to the amended text and such amended text shall bind the Customer for the future.
9. Nullity, invalidity, unenforceability and/or illegality of one or more provisions.
If one or more provisions of these General Terms and Conditions should be void, invalid, unenforceable or illegal, the remaining provisions shall remain in full force and effect. In that case, the Service Provider and the Customer undertake to replace the void, invalid, unenforceable and/or illegal provision with a valid provision that comes as close as possible to the intention of the initial provision.
10. Processing of personal data.
Insofar as the Service Provider receives personal data from the Customer, the Service Provider acts as a data controller within the meaning of the General Data Protection Regulation. The Service Provider takes the protection of personal data seriously and refers to its privacy statement for this purpose.
11. Applicable law and competent court.
11.1. If any dispute arises between the parties during the execution of this Agreement or as a result thereof, the courts in the jurisdiction of East Flanders, Ghent division, shall have exclusive competence to hear and decide thereon.
11.2. This Agreement and any disputes arising therefrom shall be governed exclusively by Belgian law.