1. All commercial transactions between the private limited company “ENGCODE”, whose registered office is at Centrum-Zuid 1111, 3530 Houthalen, Belgium, BTW-BE 0727.743.587, RPR Luik (hereinafter “ENGCODE”) and the customer , are governed by these general terms and conditions. By placing an order, the customer acknowledges having taken cognizance of and accepting our terms and conditions. These terms and conditions always take precedence over the client's terms and conditions, even if they state that they are the only ones that apply. The possible invalidity of one or more clauses from these conditions does not affect the applicability of all other clauses. In the event of the invalidity of one of the provisions, ENGCODE and the customer will, to the extent possible and according to their loyalty and conviction, negotiate to replace the invalid provision with an equivalent provision that corresponds to the general spirit of these general terms and conditions. ENGCODE reserves the right to adjust or change its general and special conditions at any time.
2. A quotation from ENGCODE is entirely without obligation and can only be considered as an invitation to place an order by the customer, unless explicitly stated otherwise. The price, description and the properties of the goods / works are communicated for information and can be changed in joint consultation. A quotation is only valid for a specific assignment and therefore does not apply to subsequent assignments. Quotations only include those goods and works that are explicitly mentioned in them, with the exception of additional work as a result of a change in the assignment by the customer, unforeseen circumstances or for any other reason.
3. An agreement is only established after written or electronic confirmation of a customer's order by a person authorized to commit ENGCODE, or by commencement of the execution of the work. Any changes or additions to the assignment after the conclusion are only valid after written agreement from both parties, regarding the price, payment terms, execution times, etc. In the event of cancellation of an assignment or purchase, even partially, the customer will be charged damages of 25 % of the price of the canceled order or purchase with a minimum of EUR 500, without prejudice to ENGCODE's right to compensation for higher proven damage, such as but not limited to the cost of the ordered materials.
4. ENGCODE always proposes the most optimal / safe setup. However, the customer decides for himself which arrangement he prefers. ENGCODE is not responsible for this choice. When omitting parts or accessories that promote safety, for example, ENGCODE cannot be held responsible for direct or indirect damage. If it concerns implementation according to a plan and calculation drawn up exclusively by the customer, ENGCODE's responsibility remains limited to the strict implementation according to the specification of these plans. ENGCODE is not liable for any form of damage arising from the plan and calculation drawn up by the customer. Unless otherwise stipulated in writing, ENGCODE is entitled to make technically necessary changes to the goods / works sold, their equipment and / or parts of which the necessity appears, without the customer being able to derive any rights from this. These additional works will be charged automatically and deemed to have been accepted by the customer. If, for reasons independent of ENGCODE, certain components are not in stock, ENGCODE can replace these missing components at its own discretion and insight with a functional equivalent of another brand. The possible replacement of missing products by a functional equivalent can in no case give rise to a reduction in price or a termination of the agreement. The possible additional price of such a replacement is not included in the price and, unless explicitly agreed otherwise, at the expense of the customer.
5. ENGCODE retains the copyrights and all intellectual rights to the documents, technical descriptions, plans, drawings, models, samples or photos that it has drawn up, irrespective of whether costs have been charged to the customer for their production. This data may not be copied, used for purposes other than those for which they are intended or shown to third parties without prior written permission from ENGCODE, as long as this data is not made publicly accessible by ENGCODE. This data must be immediately returned to ENGCODE upon simple request. ENGCODE has the right to use them for advertising purposes without having to pay any compensation to the customer. Any breach by this customer of this paragraph gives rise to the payment of a flat-rate compensation equal to 10% of the price of the goods or services, without prejudice to compensation for higher proven damage.
6. The specified implementation times are always indicative. Failure to comply with the stipulated execution times can never give rise to the dissolution of the agreement with regard to ENGCODE, to substitution or to payment of any compensation to the customer. Changes to the assignment automatically result in the expiry of the proposed execution periods. ENGCODE is not liable for delays incurred as a result of the default of suppliers of ENGCODE, the customer or any other third party. All circumstances that were reasonably unforeseeable and unavoidable when the quotation was drawn up, and that would make the execution of the agreement financially or otherwise more difficult or difficult than normally anticipated (such as, but not limited to, war, natural conditions, fire, seizure, delays at suppliers, illnesses, staff shortage, strike, business organizational circumstances, , customer default to provide ENGCODE with the necessary information, access and / or facilities necessary for the execution of the contract), will be considered as force majeure. They give ENGCODE the right to request the revision, compensation and / or the dissolution of the agreement by means of a simple written notification to the customer, without being liable or liable for any compensation.
7. Unless expressly agreed otherwise, the goods are delivered EX WORKS (Incoterms 2011) to the warehouses of ENGCODE. The collection and / or delivery of goods by ENGCODE always takes place at the expense and risk of the customer. Any costs for taking receipt of the goods are always at the expense of the customer. If it is agreed that the customer collects the goods, the customer must collect the goods himself and at his own expense at the time and place indicated by ENGCODE. In the absence of collection within 5 working days, the customer owes a storage fee of 1% of the invoice amount per week.
If it is agreed that the customer carries out the installation of the goods / works purchased from ENGCODE himself or has them carried out by a third party, this is done under the full responsibility and risk of the customer. In this case, ENGCODE cannot be held liable in any way for direct or indirect damage resulting from the installation.
If it is agreed that ENGCODE is responsible for the installation of the goods / works, ENGCODE only accepts liability with regard to the operation of the goods / works placed, insofar as the local circumstances where commissioning and / or assembly must be carried out are prepared by the customer that no circumstances can arise that make correct installation difficult. Access doors must be of sufficient size, foundations and floors on which the machines are to be installed must be fitted in a timely and correct manner and are entirely the responsibility of the customer. When installing the goods / works, the customer must provide the necessary utilities, sufficient auxiliary materials and manpower for his account. The customer will inform ENGCODE in advance of specific legal conditions that the goods must meet. If the local circumstances, where the installation of the goods / works must be carried out, do not meet what is described above, all costs arising from this will be charged to the customer by ENGCODE
8. The customer must perform an initial verification immediately upon collection, delivery and / or installation. This immediate verification obligation relates, among other things, to: (purely exemplary summary) quantity and dimensions, conformity of the delivery, visible defects, correct location (s), etc. The customer must immediately report directly verifiable deviations, under penalty of forfeiture, within 48 hours after collection, delivery and / or installation and in any case prior to commissioning, to ENGCODE in writing. If ENGCODE itself is responsible for the installation of the goods / works, when the assembly is completed, the necessary delivery tests can take place to determine whether the goods / works meet the contractual requirements for delivery. The customer provides free energy, lubricants, water, fuel, raw materials and other matters that are required for the delivery tests and for the final adjustments for these tests. The goods / works will in any case be considered delivered if:
(i) the delivery tests have been successfully completed or the customer has approved the goods / works.
(ii) the work has been put into use by the customer. If the customer uses part of the goods / works, that part will be considered as completed.
(iii) the customer does not fulfills his obligations with regard to the provision of tools for carrying out the delivery tests.
(iv) the customer does not approve the work on the grounds of minor defects or missing parts that do not prevent the goods / works from being put into use.
The works and / or delivered goods are covered by a one-year guarantee for hidden defects or non-conformities, counting from the date of the final invoice, without the indemnification period being longer than that of suppliers, subcontractors or producers of the materials or parts. All complaints based on hidden defects or non-conformity must, under penalty of forfeiture, be notified to ENGCODE by registered letter within 48 hours after its discovery by the customer. No claim to indemnification by ENGCODE for hidden defects or non-conformity can still be retained after one of the aforementioned periods. Any claim to indemnification lapses in the event of processing, alteration, repair by the customer or by third parties or in the event of abnormal or extraordinary use, -load and / or wear of the goods / works or damage caused by force majeure. Submitting a complaint does not entitle the customer to suspend his payment obligations. The customer is obliged to reimburse costs incurred as a result of unjustified complaints.
9. The liability of ENGCODE is limited to the liability that is imposed by law. Under no circumstances is ENGCODE liable for indirect damage, such as loss of turnover, loss of profit or increase in general costs. ENGCODE is also not liable for defects that are directly or indirectly caused by an act of the customer or a third party, regardless of whether they are caused by an error or negligence. If the liability of ENGCODE is retained, it is limited to, at the discretion and choice of ENGCODE, (full or partial) replacement or repair or to reimbursement of the price. Moreover, ENGCODE cannot be held liable under any circumstances for errors due to incorrect, late or incomplete information as communicated by the customer.
10. Unless explicitly agreed otherwise, the customer is obliged to pay the agreed price in installments and in particular according to the following division:
(i) 30% of the price at the conclusion of the agreement;
(ii) 60% of the price for delivery of the works / goods to the customer, regardless of whether ENGCODE itself is responsible for the installation;
(iii) 10% of the price within 30 days after delivery of the works / goods to the customer;
For assignments or orders over EUR 50,000 excluding VAT, ENGCODE also has the right to ask the customer for a bank guarantee before proceeding with the execution of the agreement. Unless explicitly stated otherwise, the prices of ENGCODE are exclusive of VAT and other taxes as well as delivery, transport, insurance and administration costs. Replacement of missing materials by others, change of supplier (s), as well as currency fluctuations, increases in material prices, prices of auxiliary materials and raw materials, wages, salaries, social charges, government-imposed costs, levies and taxes, transport costs, import and export duties or insurance premiums occurring between the order confirmation and the delivery, give ENGCODE the authority to increase the agreed price proportionally.
11. Unless otherwise agreed, all ENGCODE invoices are always payable in full to KBC account BE29 7360 5586 2364 and without discount on the invoice date. Invoices can only be validly protested by registered letter within 5 days after the invoice date and with an indication of the invoice date, invoice number and a detailed explanation. For every invoice that has not been paid in full or in part on the due date, a default interest of 10% per overdue month will be charged by law, without prior notice of default, whereby each started month will be considered to have expired and in addition the amount due plus all collection costs of ENGCODE linked to the recovery of the debt as well as with 10% of the invoice amount, with a minimum of THREE HUNDRED FIFE EURO (€ 350.00) (excl. VAT), entitled flat-rate compensation, without prejudice to ENGCODE's right to higher compensation to demand. If a customer fails to pay ENGCODE one or more outstanding claims, ENGCODE reserves the right to immediately stop any further delivery or execution and to regard other orders as canceled without any notice of default in which case the fixed compensation such as provided for in point 7 is due. Moreover, this entails the immediate claimability of all other invoices, even those that have not yet expired and all permitted payment terms and conditions. The same applies in the event of imminent bankruptcy, judicial or amicable dissolution, request for WCO, suspension of payment, as well as for any other fact pointing to the insolvency of the customer. The unconditional payment of part of an invoice amount applies as the explicit acceptance of the invoice. Abbreviations are always accepted under all reservation and without any disadvantageous acknowledgment, and first allocated to the collection costs, then to the compensation clause, the interest due and finally to the outstanding principal sum.
12. In accordance with the provisions of the Financial Collateral Act of 15 December 2004, ENGCODE and the customer automatically and legally offset all current and future debts in respect of each other. This means that in the permanent relationship between ENGCODE and the customer, only the largest claim on balance remains after the aforementioned automatic settlement. This debt comparison will in any case be opposable to the liquidator and the other concurrent creditors, who will therefore not be able to object to the debt comparison carried out by the parties.
13. Even after their incorporation, the goods / works supplied by ENGCODE remain the property of ENGCODE until full payment of the amount due (principal, interest and costs) by the customer. The customer is therefore forbidden to sell the materials supplied or to pawn them to a third party or to dispose of them in any way, as long as the price has not been paid in full. In the event of non-compliance with this prohibition by the customer, a flat-rate compensation of 70% of the amount due will be due. Once the goods / works have been delivered by ENGCODE to the customer, ENGCODE is no longer liable in the event of damage or theft of these goods, without prejudice to the aforementioned retention of title.
14. The customer authorizes ENGCODE to include the personal data provided by the customer in an automated data file. This data will be used for the purpose of conducting information or promotion campaigns in connection with the services and / or products offered by ENGCODE in the context of the contractual relationship between ENGCODE and the customer. The customer can always request communication and improvement of his data. If the customer no longer wishes to receive commercial information from ENGCODE, the customer must inform ENGCODE thereof. Costs for changes to the customer's original data that arise at his request are always charged. The customer authorizes ENGCODE to use visual material of the goods delivered and / or installed at the customer for: (purely exemplary enumeration) general information, publicity purposes, publication on the ENGCODE website, publication in brochures, etc.
15. All disputes arising from these general terms and conditions and from any other agreement concluded between ENGCODE and the customer fall under the exclusive jurisdiction of the courts of the district where ENGCODE has its registered office, unless ENGCODE decides that the courts of the district where the customer has its registered office. Belgian law applies with the exclusion of articles 1 to 4, article 40 and articles 89 to.m. 101 of the Vienna Sales Convention.