General Terms and Conditions of Purchase

1. Scope or Application and terminology
 

1.1. The present Terms and Conditions govern all Orders for works or services placed by SPIE Belgium, its branch offices and its subsidiaries and, when these companies are pen-holders thereof, the joint ventures and consortiums they are party to (hereinafter referred to as the ‘Order’).

1.2. The principal is designated as the ‘Company’ and the party whom the Order is addressed to as the ‘Contractor’. When the Order relates to the performance of works assigned to the Company by a third party (hereinafter referred to as the ‘Client’), the Contractor shall take on the capacity of subcontractor.

1.3. The Order of the Client to the Company shall be referred to as the ‘Main Contract’.

1.4. When the Order covers goods as well as works, the Order shall be governed both by the present General Terms and Conditions of Performance and by the Company’s General Terms and Conditions of Purchase. In all cases, the Order shall continue to remain a works contract.

 

Article 2 – Order terms and conditions
 

2.1. The Order is governed by the conditions shown either on an order form sent to the Contractor, or in a contract signed by both parties. Furthermore, all Orders are governed by these General Terms and Conditions. The order form or the contract and these General Terms and Conditions together form a single entity.

2.2. If the Order is placed in the context of a Main Contract, the technical and administrative provisions of the Main Contract and its appendices also apply ('back to back'). The Order shall be carried out in this case in accordance both with the technical clauses governing the Main Contract (including the plans, the descriptive documents, the warranty and implementation requirements, etc.) and the administrative clauses, both general and specific, which govern the Main Contract, with the sole exception of the provisions that are specific to the relationship with the Client, such as the prices. Unless stipulated otherwise, the penalties expressed as percentages of the contract price in the Main Contract are calculated on those of the Order. The Contractor is deemed to have full cognizance of the provisions of the Main Contract, had the opportunity to study them and take them into account, and releases the Company from any requirement to include these in the Order.

2.3. In the event of contradiction between the terms and conditions as set out on the order form or the contract and these terms and conditions, then the order form or the contract take precedence over these General Terms and Conditions of Purchase, and the combination of those conditions take precedence over the main contract.

2.4. All Orders are placed under the above-mentioned terms and conditions, which are the only ones applicable, to the exclusion of the Contractor's general or specific terms and conditions - even if they stipulate that they are the only ones applicable, and which the Contractor is deemed to have waived. If the Order quotes or refers to a price quote from the Contractor, that reference is for information only, and does not change anything in the hierarchy of terms and conditions set out above.

 

Article 3 - Formation of the Order
 

3.1. All Orders and any change to the Order must be made in writing, and duly signed by the Company's authorised representative. The Company does not accept oral orders.

3.2. If the Order is placed on an order form by the Company, then the Company is only bound by it after receiving the acknowledgement of receipt of the order form signed unconditionally by the Contractor. This confirmation of receipt also applies to the appendices referred to in and appended to the order form. Late return of the confirmation of receipt has no impact on the implementation deadlines. The fact that the Company may not react to any reservation written on the acknowledgement of receipt of the Order may not be interpreted as a tacit acceptance of said reservation. It is up to the Contractor to obtain prior, express acceptance by the Company of that reservation. Any comments must be submitted in writing and be received by the Company within eight days of sending of the order form. The comments must be explicit and detailed. Comments formulated in the form of a 'confirmation' and which refer to the Contractor's conditions or which make general reference to those conditions, will be deemed null and void. After the expiry of that period, the Order is deemed to have been accepted unreservedly.

3.3. If work starts on the implementation of the order even before the Company receives the confirmation of receipt, for example via invoicing or work being done, then the Contractor is incontrovertibly deemed to have tacitly accepted the terms of the Order in full.

 

Article 4 - Delivery deadlines
 

4.1. The delivery deadline, including the one for handing-over the associated documents, forms an essential element for the Company. Failure to respect that deadline forms a serious infringement of the Order. If the Order forms part of a Main Contract, the Contractor undertakes to deliver the Order within a period enabling the Company to comply with the planning schedule in the Main Contract.

4.2. In the event of delay, the Contractor may only invoke force majeure if this is foreseen in the Main Contract and recognised by the Client. In the latter case, the Contractor will only be allowed to defer performance provided that the Client allows the Company to extend the deadline based on the circumstances invoked by the Contractor.

4.3. If the Contractor has not delivered the Order by the scheduled deadline and, except in case of force majeure, duly recognised by the Company, then the Contractor is obliged by the mere fact of the expiry of the deadline to pay liquidated damages to the Company. The calculation of this liquidated damages will be described in more detail in the order form or the contract. If the order form or the contract does not mention anything about this, the penalty is equal to 1% of the amount of the Order per calendar day of delay, with a maximum of 10% of that amount. These liquidated damages are payable regardless of whether the Client imposes a penalty on the Company. These penalties will be deducted automatically from all amounts to be paid to the Contractor.

4.4. The Company expressly reserves the right to recover from the Contractor under the common law any additional direct or indirect losses that this causes.

4.5. If the delay puts the implementation date for the Main Contract in jeopardy, and the Company is obliged by the Client to pay penalties for delay or other charges, the Contractor shall also - based on a mere notification by the Company - hold it harmless against all penalties, fines and compensation imposed by the Client.


4.6. Without prejudice to the above, the Company is also entitled to terminate the Order in its entirety or in part by registered letter, without any payment of compensation and without the intervention of the courts, and/or seek the completion of the Order by another Contractor at the expense and risk of the Contractor, and/or take any measures allowed by the specifications of the Main Contract.

 

Article 5 - Shipping, packing, delivery and place of delivery
 

5.1. Unless agreed otherwise on the order form or the contract, the Order is to be delivered during normal working hours in accordance with Incoterms 2010 DDP (Delivered Duty Paid), at the place defined on the order form or contract, or, if no such place is defined, at the Company's premises mentioned on the order form.

5.2. The order consists of the goods, services and everything associated with them, either directly or indirectly that are mentioned on the order form or contract, so that the Delivery is ready for use with all necessary or useful accessories, in accordance with their intended purpose and optimal use. It is to be accompanied by the necessary instructions for assembly, use and maintenance, all applicable licences, permits, certificates and documentation as well as the special safety instructions. These documents will be drawn up in the language prescribed on the order form and, if this is not stipulated, in Dutch and French.

5.3. The Contractor is liable for the measurements that it made on site; it is deemed to have checked, within the limits of its specialist field, of the dimensions and plans that were handed to it by the Company and is expected to inform the Company without delay of any mistake or omission.

5.4. The Contractor is responsible for proper packaging of the goods to be delivered. This packaging must be undamaged on delivery. The packaging must carry the appropriate markings and must be taken back by the Contractor at the request of the Company.

5.5. Immediately on unloading of the Order, the Contractor must produce a consignment note or packing note for signature by the authorised representative of the Company.

 

Article 6 - Acceptance, transfer of ownership and transfer of risk
 

6.1. Mere delivery cannot be considered to be acceptance. The Company shall not be bound to check and/or test the quality of goods immediately on delivery, but will be allowed a reasonable period to report defects or non-conformities. The signature of a consignment note, approval of the quantities or any payment does not imply in any way acceptance of the goods delivered, and does not release the Contractor from any warranty obligation and/or liability.

6.2. For deliveries involving installation, commissioning, software or services, acceptance and transfer of risk happens at the time of (provisional) technical acceptance, unless agreed otherwise on the order form or contract. For other deliveries, the risk is transferred at the time when the Company takes delivery.

6.3. The Company becomes the owner of the goods supplied on delivery to the place mentioned on the order form or the contract. If the order form or contract provides for payment in advance, then ownership is transferred on payment. The risk remains with the Contractor until such time as they are accepted.

 

Article 7 – Inspections
 

The Contractor shall ensure that the Company or its representative has the possibility at every stage of the purchasing process to inspect the quality of the goods as well as the managing process. The inspection or testing does not release the Contractor from any obligation or liability under this agreement. Furthermore, the Company may cancel the Order and refuse the goods in the event of non-conformity.

 

Article 8 – Technical warranties
 

8.1. The Contractor warrants that i) it is the owner of the goods, ii) the goods are free and unencumbered by any lien, pledge, mortgage or other rights of third parties, iii) the goods are newly manufactured and unused, iv) the goods comply with the prevailing laws, regulations, technical standards and safety requirements, v) the goods are free of defects and v) the goods are fit for purpose.

8.2. Provided that no legally prescribed rules require a longer period, and unless agreed otherwise, the goods and the associated services will be guaranteed for at least two (2) years, starting from the completion of the Order, in respect of being in good working order, and meeting the stipulated performance requirements, and remain guaranteed against defects, irrespective of their nature and cause.

8.3. If the Company informs the Contractor during the warranty period that certain goods and services do not meet the guarantees stipulated in this article, the Contractor shall, at its own expense and as the Company thinks fit, and without delay, either i) repair the defect, or ii) replace the goods and/or services supplied. In that case, a new and identical warranty period shall start running as from the date of repair or replacement. The Company may also opt to iii) ask for a discount, iv) terminate the contract in its entirety or in part due to the Contractor's fault, v) claim compensation or vi) carry out any repair or replacement or provide the service itself at the Contractor's expense.

8.4. If in the opinion of the Company, a serious fault or substandard performance or a fault that might recur is involved, then the Company has the right either to demand that the Contractor replace or repair all the goods and services supplied in the context of the Order (in which case a new and identical warranty period starts running) or to cancel the whole order.

8.5 Replacement not only means the replacement of the equipment which appears to be defective, but also the dismantling, transport and all the associated costs (customs, taxes, etc.), the assembly and recommissioning necessary as part of the replacement.

8.6. The Contractor shall hold the Company harmless against all direct and indirect costs, damages and losses as a consequence of such a warranty claim.
8.7. Even after the warranty period has expired, the Contractor remains liable for latent defects based on an in accordance with Art. 1641 et seq. of the Civil Code.

 

Article 9 – Liability and insurance
 

9.1. The Contractor shall bear the entire liability and hold the Company harmless, without restriction, and indemnify it for any direct or indirect loss, expense (including transport, dismantling, re-assembly and recommissioning), losses and defence costs as a consequence of an infringement by the Contractor of this agreement or the consequence of a defect or non-conformity of the goods.

9.2. The Contractor shall indemnify the Company and defend it against any complaints by the Client or third parties and against any claim based on product liability.

9.3. The Contractor is bound to take out at least the insurance mentioned below with an insurance company with its registered office in the European Union and approved in Belgium, to cover its liability, and which it shall prove by submitting the insurance certificates if merely requested to do so: i) civil liability insurance for a minimum of 2,500,000€ per claim incident, ii) workplace accident insurance and iii) motor vehicle insurance. The Contractor is also bound to take out at its expense any insurance stipulated on the order form or the contract. The amounts of the excess clauses are payable by the Contractor.

9.6. The Contractor hereby declares that it will abide by all provisions concerning waiver of recourse which the Company has signed up to with respect to the Client, and will ensure coverage of these provisions by its insurers.

 

Article 10 – Price
 

The Contractor shall supply the goods (and the associated services and everything that goes with it) at the prices shown in the Order Form or Contract. Unless expressly agreed otherwise, the prices are i) flat-rate, ii) firm and not liable to revision, iii) exclusive of any VAT but iv) inclusive of all other taxes, duties, levies, (licence) fees and other expenses including, but not limited to transport, packaging, insurance, certificates, manuals and other user documentation given in the language as mentioned in the Order Form or - in the absence thereof – given in Dutch and French.

 

Article 11 – Invoicing
 

Any order shall be the subject of a separate invoice, sent to the Company's registered office. The invoice shall quote the order number on the Order Form, and be accompanied by the necessary supporting documents and all other documents stipulated on the Order Form or contract. Invoices that do not meet these requirements may be refused and sent back. In that case, they will be deemed to have been the subject of a valid challenge.

 

Article 12 Payment
 

12.1. The payment period commences once the Company is in possession of a properly drawn up, complete invoice. Unless specific terms have been agreed, the Contractor's invoices are payable ninety (90) days after the end of the month of receipt by the Company of the properly drawn-up document. The date of receipt of the invoice shall be determined by the Company stamp.

12.2. Payment will be made by bank transfer to the Contractor's account on the standard due date for payment of the Company's suppliers, i.e. the 10th of the month after the invoice due date (or, if the 10th is not a bank working day, on the next bank working day thereafter). If these periods should be exceeded the Contractor may, after sending notice of default, claim interest calculated at the statutory interest rate as from the payment due date. The Company shall not be liable to pay flat-rate compensation or penalties under any circumstances.

 

Article 13 – Financial guarantees
 

13.1. If the Order Form or the contract expressly provide for this, the Contractor shall constitute a bank performance guarantee for the proper fulfilment of the Order and for its entire duration, with a financial institution of international standing established in Belgium, in order to guarantee payment, at the first time of asking, of the amount shown on the order form or the contract, or failing such a clause, an amount equal to 10% of the original amount of the Order.

13.2. The bank guarantee is to be constituted irrevocably, autonomously and unconditionally. All costs associated with it are to be borne exclusively by the Contractor. The originals of the letters of guarantee are to be handed over to the Company within the period stipulated in the Order Form or the contract or, failing such a clause, within 30 days of the date of the form or the contract recording the Order.

13.3. In the event of the bank guarantee referred to above being called in, the Contractor shall immediately constitute a new bank guarantee. In the event of a considerable increase in the value of the Order, the Company may request the issue of an additional bank guarantee which brings the total guaranteed amount to 10% of the current value of the Order.

13.4. The bank guarantee will be released at the Contractor's request on the expiry date and under the conditions laid down on the Order or, failing any such clause, on definitive technical acceptance by the Client as defined in the Main Contract. If the Order relates to an 'if and when' Order, the bank guarantee will be released when the Client has released the corresponding guarantees constituted by the Company in favour of the Client.

13.5. If the Contractor remains in default of issuing these bank guarantees, the Company has the right either to demand the issue of these guarantees, or to make a deduction from all the amounts payable to the Contractor until the amounts deducted jointly form an amount equal to the guarantee not provided, and withhold these funds, without payment of interest, until the due dates of the scheduled release for the bank guarantees.

 

Article 14 - Transfer
 

Unless with the prior written consent of the Company, the Contractor does not have the right to assign, transfer, pledge or outsource the Order or parts thereof.

 

Article 15 – Suspension, termination and cancellation
 

15.1. The Client's decision to suspend or cancel the Main Contract or any other action with the same outcome empowers the Company to suspend or cancel the Order.

15.2. Unless that is attributable to a serious fault admitted by the Company, such a suspension or cancellation shall not give rise to compensation of the Contractor, unless the Client pays compensation to the Company on grounds of suspension or cancellation of the Main Contract, in which case said amount may be shared between the Company and its various Suppliers in proportion to the scale of the proven damages of the Contractor in relation to the loss sustained by the Company and by the other Suppliers.

15.3. If the Contractor fails to live up to its obligations or if the Order is not carried out on time, the Company has the right, as from five working days after sending notice of default by registered letter which has not been acted upon, to claim by operation of law and without prior action through the courts and without prejudice to the Company's right to seek additional compensation and interest, and to cancel the Order due to the fault of the Contractor, without the Contractor being entitled to any compensation, or to have the Order delivered by a third party at the Contractor's risk and expense.

15.4. In the event of bankruptcy, judicial restructuring, liquidation, death, prohibition, cessation or actual ending of business activities and in any cases which result in the Contractor being prevented from completing the works, the Company has the right, unless the law provides otherwise, to cancel the Order as it thinks fit by simple written notice and without action through the courts, or to have the Order carried out by the lawful successors at the conditions of the Order, without prejudice to any compensation and interest.

 

Article 16 – Processing of personal data
 

16.1. The Parties process each other's personal data, as well as those of the Client, the (sub)contractor(s) and other building firms, their personnel, their collaborators, their agents and other useful contacts. The purpose of this processing is the fulfilment of this contract, management of customers/suppliers/subcontractors, accounts and safety on site. The legal basis is the performance of the contract, compliance with legal and regulatory obligations (such as the mandatory electronic registration of presence on site, the 30bis declaration of works, attendance lists or other obligations for public procurement projects) and/or the legitimate interest of the relevant Party.

16.2. The Parties undertake only to process this personal data with a view to the above-mentioned purposes and in accordance with the provisions of the General Data Protection Regulation as well as all prevailing laws, decrees and implementing orders. It shall only pass on this personal data to processors, recipients and/or third parties to the extent necessary within the framework of the above-mentioned purposes for processing.

16.3. The parties shall take the necessary precautions to protect the personal data against risks including unauthorised access, theft, destruction, loss, corruption, disclosure, reproduction or dissemination, either accidental or illegal.

16.4. The Contractor undertakes to impose the same obligations on the companies and organisations that it uses.

16.5. Each Party is aware of its rights to inspect, correct, delete or objects to the processing of their data. For further explanation, the Company refers expressly to the Data Protection Notice, which can be found on its website www.spie.be. The other Party confirms that it has cognizance of this Data Protection Notice and accepts its content.

 

Article 17 – Confidentiality and Secrecy
 

17.1. The Contractor is bound to treat all data and information that it has obtained during the term of the contract from the Company or the Client as confidential and keep it secret, unless agreed otherwise in advance. The data and information provided remains the property of the Company and the Contractor shall only use it for the purpose for which the contract was entered into.

17.2. The Contractor shall ensure that its personnel, its representatives and any third party that it uses in carrying out the Order shall be subject to and comply with the same duty of confidentiality and secrecy as that which applies to the Contractor, whereby the latter is jointly and severally liable for all infringements.

17.3. The Contractor shall take appropriate measures to prevent unauthorised access or disclosure of this confidential data, in accordance with the standard of protection prevailing in the industry concerned, or in the same way and to the same extent that the Contractor protects its own confidential commercial information, whichever standard is higher.

 

Article 18 - Intellectual Property Rights
 

18.1. Drawings, illustrations, calculations, working methods and procedures that are provided by the Company remain the property of the Company and may not be reproduced, copied or passed to third parties by the Contractor, or made public, or used in any other way than exclusively in the context of the contract. At the Company's request, the Contractor is bound to return these documents at its own expense after delivery/technical acceptance.

18.2. Items and working methods that the Company developed in collaboration with or commissioned by the Contractor become the property of the Company and may only be made available to third parties with the prior written consent of the Company. The knowhow acquired by the Company from this development is exclusively available to the Company, and will not be made known by the Contractor to third parties or used by it and/or third parties, unless the Company has given its prior written consent. The Contractor transfers, to the extent necessary, in advance and free of charge, the intellectual property rights to the Company, and the Company accepts the transfer. If a document or other formality is necessary for the transfer or the registration in relevant registers, the Contractor already grants its unconditional cooperation, or respectively already grants its irrevocable power of attorney to the Company to accomplish that transfer or registration (or other formality).

18.3. To the extent that intellectual property rights apply to the goods or services provided by the Contractor, for which the Contractor can prove that they already existed prior to the effective date of the contract and were the Contractor's property, or that they were developed independently of (the performance of) the contract, the intellectual property rights remain with the Contractor. The Contractor grants the Company a non-exclusive, everlasting, irrevocable, worldwide and transferable right of use with regard to such intellectual property rights for any purpose relating to the business or the activities of the Company. The Company's right of use also comprises the right to provide such right of use for its (potential) customers or other parties with whom it maintains relations in connection with the running of its business.

18.4. The Contractor guarantees that the implementation of the Order does not infringe intellectual property rights (including copyright, patent rights, model rights, trade mark rights) of the Company and/or third parties. The Contractor shall indemnify the Company against claims by third parties for infringement of these rights as well as any consequential loss. 18.5. The Contractor is not allowed to use the trade name and/or logo of the Company without the prior written consent of the Company.

 

Article 19 – Charter, ethics and safety
 

19.1. The Company attaches a great deal of importance to compliance with ethical principles. This implies that it expects and demands the same attitude from the parties with which it does business. The Contractor acknowledges and confirms that it has received a copy of the Charter for suppliers and subcontractors. The Contractor agrees to perform its contractual obligations in accordance with this Charter.

19.2. Specifically, the Contractor shall ensure that its employees or representatives refrain from any act of fraud, corruption or conflict of interest, and do not take any action or adopt an attitude that could distort or restrict competition. In the event of an infringement, the Company would have the right, unless the law stipulates otherwise, to cancel this order if it thinks fit by giving notice by ordinary mail and without action through the courts, or to have the Order fulfilled by the legal successor under the conditions of the Order, without prejudice to any compensation or interest. If the case arises, the Contractor shall indemnify the Company against any possible negative consequences of remaining in default, including any fees of legal counsel.

19.3. The Contractor shall comply with and act in accordance with all applicable health, safety and environment regulations.

19.4. If the goods supplied consist of tools or protective equipment, they must comply with all the health and safety rules in terms of design, manufacture and use so that they rule out hazardous working conditions as such (even if they are not expressly foreseen by the regulation). On delivery, the Contractor shall provide a document showing that the above clause is satisfied or which justifies any exemption foreseen in the regulation.

 

Article 20 - EC/CE marking
 

By accepting these general terms and conditions of purchase, the Contractor confirms that it will draw up an EC conformity declaration and apply EC/CE marking if this is required.

 

Article 21 – Chemicals
 

Contractor warrants that it is fully aware of EU Regulation No. 1907/2006 concerning the Registration, Evaluation, Authorisation and Restriction of Chemicals (REACH) imported into, distributed or used in the European Union. The Contractor guarantees that, if and to the extent applicable, the goods or substances contained therein completely meet the requirements of REACH. The Contractor shall provide the (pre-)registration number(s) and the Safety Data Sheet (SDS) to the Company. To the extent that the goods or substances contained therein fall under other (inter- )national regulation which restricts the use of chemicals, the Contractor guarantees that the goods or substances contained therein meet the requirements of that regulation.

 

Article 22 - Compensation
 

All financial claims of the Company against the Contractor, whether or not they relate to the Order, shall be offset by operation of law against any amounts to be paid to the Contractor pursuant to the Order. In the event of a financial claim by the Company is not definite, the Company has the right to withhold a suitable deposit corresponding to the estimated amount, based on its claim.

 

Article 23 - Applicable law and disputes
 

23.1. The Order is governed by Belgian law to the exclusion of the United Nations Convention on Contracts for the International Sale of Goods.

23.2. In the event of disputes, the courts in whose jurisdiction the registered office of the Company is located shall be competent. Nevertheless, the Company reserves the right, if it is acting as the plaintiff, to bring the case before any other competent court.

23.3. If the Company is formally ordered and/or summoned by the Client or a third party with regard to works carried out by the Contractor, the latter shall participate voluntarily as a party in the dispute at the first time of asking by the Company, even if legal proceedings are ongoing between the Company and the Contractor.

23.4. If the Company is bound contractually to the Client by an arbitration clause, then the Contractor summoned to be joined in proceedings by the Company shall take part in this arbitration procedure.