General terms and conditions of sale, services and contracting
Applicability
These general terms and conditions shall apply to all agreements and offers related to services, contracting work, and sales issued by Encon to the Client. These terms and conditions also extend to any amendments, supplements, and all documents involved in the preparation and execution of any consulting, engineering, and contracting agreements (hereinafter referred to as the "Agreement"). It is understood that reference to the Agreement also includes reference to these general terms and conditions (hereinafter referred to as the "Terms and Conditions"), which are an integral part of it and binding, unless explicitly deviated from in writing.
In these Terms and Conditions, the following terms have the following meanings: 1) Products: Everything that Encon supplies or has supplied to the Client during the execution of an Agreement, including related components, designs, drawings, and models. Reference to Products may also imply references to associated Services; 2) Services: All work that Encon undertakes or commissions to be done, either for a fee or free of charge, based on the Client's instructions. This includes the provision of (technical) advice, instructions, designs, drawings, calculations, etc.;3) Works (and 'Work'): All work that Encon undertakes or arranges to be done on behalf of the Client; 4) Deliverables: All deliverables that Encon undertakes or arranges to be done on behalf of the Client, including services, products, and/or works in any form, along with their results. This also encompasses all activities necessary for the complete execution of the Agreement.
General
2.1 Unless otherwise agreed upon, Encon does not directly participate in the physical execution of the work it has advised on.
2.2 The offers made by Encon are valid for a period of 30 days. Verbal offers and commitments are only binding on Encon after written confirmation. All offers made by Encon, in any form, are non-binding unless explicitly stated otherwise. Encon is not obligated by prices in the offer or Agreement resulting from obvious printing, clerical, or calculation errors.
2.3 An Agreement becomes effective only after Encon confirms the Client's order or commences fulfilment of that order.
2.4 The Client's general terms and conditions do not apply to the Agreement, irrespective of whether the Client refers to them in a request for an offer sent to Encon and/or an order confirmation.
2.5 If the Client cancels the Agreement, either in part or in full, the Client shall owe Encon a lump sum equal to 30% of the agreed price, with a minimum amount of 500 EUROS. The Client shall only be entitled to cancel a Contract after prior written (possibly conditional) consent thereto by Encon. In addition, full or partial suspension of the Agreement by the Client for a period longer than 1 year shall be equated with cancellation within the meaning of this article, and consequently shall also give rise to the aforementioned liquidated damages. The period of one year starts to run after the explicit notification of suspension by the customer or a notice of default by Encon requesting the customer to take certain actions and stating that, failing this, the period of one year starts to run from the date of the notice of default.
2.6 The Client must promptly notify Encon in writing of any errors and/or defects claimed to exist in any structures, work methods, building materials, resources, specifications, drawings, designs, calculations, or other Deliverables that Encon intends to supply or use, as per the provided documents.
2.7 In cases where Encon provides Deliverables or arranges for their provision at the Customer's premises, and utilizes the Customer's equipment or tools, the Customer is responsible for equipping and maintaining its premises, equipment, and tools to prevent any damage to individuals providing the Deliverables (both Encon's employees and third parties engaged by Encon) or to goods belonging to Encon and/or third parties engaged by Encon. The Customer is liable for any damage to or theft of portable measuring devices placed by Encon on the Client's premises for surveys.
2.8 The Client shall always grant Encon access to its buildings and/or premises ("yard") to execute the Agreement and permit inspection of all requested documents to facilitate proper execution of Encon's activities.
2.9 The (project) administration of Encon serves as conclusive evidence of the agreements between the parties, subject to any evidence to the contrary provided by the Client.
Delivery and execution periods
3.1 Deadlines for delivery and/or execution are provided for informational purposes only and are not binding for Encon. Exceeding these deadlines cannot be used as a basis for compensation or the Client's cancellation of the Agreement.
3.2 If, in Encon's opinion, the data necessary for the execution of the Agreement are not provided or not provided in a timely manner, Encon has the right, after providing prior written notice to the Client, to either set a new delivery date and/or execution period, or to revise the price, or to terminate the Agreement.
Prices and payment
4.1 All prices quoted by Encon are exclusive of VAT and, in the case of Products, are based on delivery EXW in accordance with the applicable ICC Incoterms, excluding packaging costs. Payments are to be made in euros (€). If a specific price is not expressly agreed upon in the Agreement, the price stated in Encon's price lists at the time of invoicing will apply, or, if unavailable, a reasonable and market-based price will be applied.
4.2 Travel expenses will be charged at €0.50 per km.
4.3 If, following the Agreement's establishment, there is an increase in the prices of raw materials, wages, taxes, levies, or premiums of any kind, whether or not imposed by the government, Encon reserves the right to adjust the agreed price accordingly.
4.4 The following indexation clause is deemed to be agreed upon in all agreements/orders. The remuneration will be adjusted annually based on the formula P = Po (0.2 + 0.8 (Sn/So)), where:
- P = new renumeration;
- Po = old renumeration;
- Sn = reference wage (national average) as published by Agoria, valid in the month preceding the month in which the remuneration is adjusted;
- So = reference wage (national average) as published by Agoria, valid for the month preceding the signing of the order/agreement.
This clause can never lead to a price reduction.
4.5 Invoices must be paid within 14 days from the date of the invoice, unless otherwise expressly agreed upon. Invoices shall be payable to the Encon account number specified on the invoice. The Client does not have the right to suspend and/or set off payments against amounts owed to them by Encon.
4.6 If the Client defaults on any payment obligations, all of Encon's receivables shall become due and payable in full immediately. In the event that one or more advance payment invoices are not paid or not paid on time, Encon reserves the right to suspend its survey work until the outstanding amounts are paid in full and to secure payment from the Client for the remaining work to be performed, without the Client being entitled to claim damages.
4.7 If Encon suspends the execution of the Agreement due to non-payment, late payment by the Client, or any other circumstance attributable to the Client, the overall execution schedule of the Agreement shall be postponed for the duration of such suspension, without Encon incurring any penalty, compensation, or liability.
4.8 Unless Encon receives a written objection to an invoice within 14 days from the invoice date, the invoices issued by Encon will be considered accepted.
Provision of services and works
5.1 Encon commits to delivering the agreed Work and Services in line with the most current technological standards and the principles of good and sound craftsmanship. It's important to note that Encon is obligated to make efforts but does not guarantee specific outcomes.
5.2 The Client is authorized to utilize (the outcomes of) the Services and WORKS provided by Encon solely for the intended purpose for which they were delivered. The Client is not permitted to commercialize or provide access to these deliverables to third parties, whether under its own brand or trade name or otherwise.
Provision/delivery
6.1 Deliveries will be made at the designated place and time specified in the Agreement. In the absence of such a provision in the Agreement, delivery shall occur after mutual consultation between the parties, ensuring that Encon is given a reasonable period to adequately fulfil the Agreement
6.2 Upon the Client's commissioning of the works and services provided by Encon, acceptance of these deliverables is presumed, and the associated risk is transferred directly to the Client.
6.3 Encon retains ownership of the Products regardless of their delivery until full payment, including any interest and/or costs, has been received from the Client.
6.4 If Encon places measuring equipment and/or other resources on the site or premises of the Client for the execution of the Contract, any loss and/or damage to such items shall be attributed to the Client.
Force majeure and imprevision
7.1 In the event that Encon is unable to fulfil its obligations under the Agreement due to force majeure, Encon shall not be held liable for the consequences of this failure. If the inability to fulfil obligations is temporary, Encon's performance of those obligations shall be suspended for the duration of the force majeure event. If the period of inability to fulfil obligations due to force majeure extends beyond 2 (two) months, Encon reserves the right to terminate the Agreement with immediate effect, without the Client having any entitlement to compensation on such grounds.
7.2 Force majeure, as referred to in Clause 7.1, encompasses, but is not limited to, restrictive governmental measures, (industrial) strikes, shortages of raw materials, personnel illness, delays at Encon's suppliers and/or subcontractors, transportation issues, (threat of) war, full or partial mobilization, riots, sabotage, floods, fires, or any other forms of disruption at Encon's company, (employee) lock-outs, and machinery/tools malfunctions or any other disruptions within Encon's operations. Force majeure shall also apply if any of the aforementioned circumstances occur at Encon's suppliers and subcontractors, thereby hindering Encon from fulfilling its obligations to the Client (in a timely manner).
7.3 If unforeseen circumstances arise during the execution of the Agreement, making it difficult to proceed to the extent that the economic balance between the parties is adversely affected, both parties agree to enter into negotiations to amend the Agreement accordingly.
Intellectual Property rights
8.1 Encon retains sole ownership of all intellectual property rights in the Deliverables provided to the Client, as well as the results derived from them (hereinafter referred to as "IP Rights"). The Client shall not acquire any rights to Encon's IP Rights. These IP Rights include trademarks, trade names, logos, designs, slogans, copyrights, patents, models, drawings, know-how, and any other distinctive materials owned by Encon and/or its licensors, whether or not eligible for registration or filing. The Client is not permitted to reproduce, copy, or disclose Encon's Deliverables to third parties without the express prior written consent of Encon, whether or not for the purpose of obtaining benefits for itself and/or third parties.
8.2 The Client shall indemnify Encon against any claims made by third parties due to infringements of any intellectual property rights connected to the provision and/or use of a Deliverable executed according to the Client's specifications.
8.3 Encon warrants that, to the best of its knowledge, its products, Works, and Services do not infringe any intellectual property rights of third parties. However, in the event that the Deliverables do infringe the intellectual property rights of any third party, Encon shall not be liable to the Client and shall not be obligated to indemnify the Client.
Complaints and inspections
9.1 Upon delivery or completion of the Deliverables provided by Encon, the Client shall inspect them (or have them inspected) to check for quantities, volumes, and any identifiable defects during a normal and thorough inspection.
9.2 Any complaints regarding Deliverables provided by Encon must be reported to Encon via registered letter within 8 days of their delivery/provision. These complaints must be accompanied by a precise justification and an accurate description of the defect, failure of which may result in the forfeiture of rights.
9.3 In the event of a valid and timely complaint concerning a Deliverable, Encon commits, at its discretion, to (i) repair the defect, or (ii) replace the Deliverable, or (iii) partially refund the price paid for the defective Deliverable. However, Encon's liability in all cases is limited to a maximum of 25% of the price.
9.4 Any claims by the Client for a price refund, repair, or replacement of a Deliverable, for any reason, as well as the Client's right to rescind the Agreement at Encon's expense, shall lapse under the following conditions: a) if the complaint notification is delayed, b) if Encon has not been granted the opportunity to investigate (or have investigated) the complaint thoroughly, or c) if 6 (six) months have passed after the delivery date.
Duty of confidentiality
10.1 The Client is required to maintain strict confidentiality regarding any information belonging to Encon and/or its affiliates, which becomes known to the Client during the execution of the Agreement. The Client shall not disclose such information, including any details related to the Contract and its execution, to any third party, either wholly or partially, in any manner whatsoever, unless explicit prior written consent from Encon is obtained, and such consent shall not be unreasonably withheld.
Liability
11.1 Encon shall only be liable to the Client in case of professional misconduct during the execution of its assignment. The Client bears responsibility for the accuracy and completeness of the plans and/or data provided to Encon. Encon is not accountable for damages arising from defects, inaccuracies, and/or omissions in the Deliverables that the Client fails to report or does not report in a timely manner. Additionally, Encon cannot be held responsible for issues resulting from incorrect or incomplete information or instructions provided by the Client. Any calculations made by Encon are for indicative purposes only.
11.2 Encon's liability is limited to direct damage, and it shall not be held liable for indirect damages such as production stoppages, loss of profit, lost savings, missed opportunities, loss of goodwill, or periodic penalties and fines. Encon cannot be held responsible for power outages and/or production stoppages occurring at the Client's premises as a result of Encon's work and/or measurements. Encon is not responsible for any accidents happening at the Client's premises due to the provision of its Deliverables.
11.3 In any case, Encon's overall liability is restricted to the amount paid by the Client to Encon for the Deliverables provided
11.4 The limitation of liability stated in the Agreement and/or these Terms and Conditions does not apply to damages resulting from wilful intent or gross negligence on the part of Encon.
Applicable law/competent court/voidability
12.1 The Agreement is subject exclusively to Belgian law.
12.2 Any disputes shall be exclusively brought before the Commercial Court of Antwerp, Tongeren Division.
12.3 If one or more provisions of these Terms and Conditions are found to be void, voidable, or unenforceable, all other provisions shall remain in effect.