General Terms & Conditions AYA

General Terms & Conditions AYA

1. The parties are obliged to keep confidential the information necessary for the execution of the assignment received from the other party in the context of the execution of this contract. They may not disclose such information to third parties without the written consent of the party from which the information originated.
2. To ensure optimal performance of the Agreement, the Customer undertakes, during the Contractual Period, to perform the Agreement to the best of its ability and to act in good faith and loyally in its relationship with AYA.
3. Should AYA be held liable for any damages, AYA's liability would in any event always be limited to the amount paid out by its insurer in such a situation and never higher than the amounts already invoiced by AYA. In any event, AYA can never be held liable for indirect damages, including consequential damages, lost profits (lucrum cessans), missed savings and damages resulting from business interruption.
4. The parties authorise each other to use each other's name and trademark on their websites and in press articles, for marketing and promotional purposes only.
5. Either Party may terminate this Agreement in writing with immediate effect in the following cases:
6. 1. "material breach" means the other Party commits a material breach of this Agreement which cannot be undone, or a material breach which can be undone but which the other Party has not put an end to within 15 (fifteen) days of receipt of written notice thereof.
   2. cessation of operations: the other Party ceases operations or makes a settlement with its creditors; a claim or proceeding under bankruptcy or insolvency law commenced against the other Party (and which is not dismissed or dismissed within 30 (thirty) days); a legal administrator or receiver is appointed over all or part of the other Party's assets; the other Party carries out a voluntary or compulsory liquidation of its assets (other than for the purpose of reconstruction or a bona fide merger), or a similar event occurs in relation to that Party;
7. Each Party represents and warrants that it has the right to enter and perform this Agreement and indemnifies the other Party against all claims in this regard.
8. AYA represents the Customer – and the Customer consequently acknowledges that AYA has exclusive mandate to represent the Customer – in the negotiations with a Producer/Supplier for the closing of a Power Purchase Agreement (PPA). Furthermore, the Customer agrees that, during the term of exclusive mandate, it will not, directly or indirectly, negotiate or enter into any other power purchase agreement with a Producer/Supplier, other than through AYA as intermediary, as long as the exclusive mandate is in force. The Customer acknowledges that AYA is entitled to a fee (€/MWh) during the duration of the PPA for its services in connection with a PPA transaction, which is to be paid by the Customer unless the Customer and the other parties (AYA and the Producer/Supplier) agree otherwise. In case of breach the Customer will pay a penalty based on the missed revenue for AYA.
9. The Customer expressly acknowledges and accepts that the above fee is and will always (even after the expiry of the term of this agreement) apply to Power Purchase Agreements entered into between the Customer (or company directly or indirectly affiliated to the Customer) and the power producer(s) (or company directly or indirectly affiliated to the power producer(s)) introduced by AYA.
10. All fees related to the Agreement will be indexed annually according to the health index published by the Belgian statistical office (Statbel).
11. If a situation arises which this Agreement did not stipulate, such situation will be assessed in the spirit of this Agreement and in good faith.
12. If any clause or provision of this Agreement is declared invalid or unenforceable, this shall not affect the validity and enforceability of the remaining clauses or provisions of this Agreement. The Parties shall consult to agree on new provisions to replace those which have become invalid, and which are as close as possible to the scope and purpose of the original provisions.
13. A Party's failure or delay in exercising the rights or obligations covered by this Agreement, the partial exercise of those rights or obligations, or a partial response or failure of a Party to respond in the event of a breach by the other Party of one or more provisions of this Agreement, shall not be considered or construed as a waiver (express or implied, full or partial) of that Party's rights or obligations under this Agreement or under that provision(s), nor shall it preclude the exercise of those rights and obligations in the future. Any waiver of a right or obligation must be express and in writing. If an express written waiver of a right or obligation has been made because of a specific breach by a Party, the other Party may not rely on such waiver in favour of a new breach similar to the previous breach, or in favour of any other form of breach.
14. This Agreement is governed by Belgian law. Any dispute concerning the interpretation or execution of this Agreement is subject to the exclusive jurisdiction of the Dutch-speaking courts of Brussels. 
15. Confidentiality: AYA undertakes not to disclose to third parties any confidential data to which it would have access during its collaboration with the Customer. 
16. Claims: the engagements described in this agreement involve consulting services that are always based on market knowledge and experience. However, many factors are subject to change, external and/or unknown factors, beyond the will and control of AYA. AYA can in no case be held responsible for factors not in its control.
17. Premature termination of agreement: the Customer cannot terminate the agreement early unless milestones confirmed in writing by both parties are not met by AYA. In such a case, mutual agreement will be reached on what portion of the fee is to be paid. This part can never be smaller than 50% of the total sum due, nor smaller than the parts already completed separately quoted under 'fee'. 
18. Unless stated otherwise in the specific terms of the contract, the duration of the agreement is 12 months. In any case, the contract will be automatically renewed for the same duration as the initial contract. Termination of the agreement must be made in writing 3 months before the renewal date.
19. Electronic Invoicing: AYA invoices electronically conform applicable regulation and legislation.
20. Payment: unless stipulated otherwise, invoices are payable 30 days after the date of receipt of the invoice. In the event of non-payment by the due date, it is expressly agreed by the parties, without the need for notice of default, that interest at the National Bank's discount rate plus 2% will be charged on any overdue and unpaid amounts.