GENERAL SALES CONDITIONS - Edition of March 1st, 2006
Keppel Seghers Group of Companies, Hoofd 1 - B-2830 Willebroek, hereinafter referred to as "KS"
All orders, proposals, undertakings and deliveries of goods and services by KS are effected according to the conditions determined hereafter. The conditions of KS take priority over all conditions of contracting party (hereinafter client), notwithstanding the way or time at which these conditions were communicated. Departures from the conditions of KS are only accepted when they are approved of in writing by the authorised persons of KS.
Establishment of contract Proposals by KS are made free of engagement and without any commitment. They are only valid during the mentioned period; by default 30 days from date of expedition to client. KS also reserves the right to withdraw her proposal or to refuse an order, when in the meantime important changes have occurred to the elements which were known at the time the proposal was made. An order/commission is only accepted when it has been expressly approved or confirmed in writing by the authorised persons of KS. Should client decide not to execute the commissioned order, he has to pay a fixed compensation of 30 % of the order, and which is an agreed compensation for expenses and loss of profit.
Drawings KS reserves the exclusive right of ownership and copyright on all drawings/diagrams/designs/other technical documents and data submitted to client prior or subsequent to the establishment of the contract. They have to be treated confidentially and may not be used by client or copied, duplicated, transmitted or communicated to third parties. Any infringement will give cause for a fixed compensation of EUR 120.000,- per infringement.
Delivery time Delivery time and period for completion are considered as an estimate, only provided for simple information and can never be considered as compulsory for KS. Any delay can never give cause to termination of the contract or any compensation, unless expressly provided otherwise. Any term can only begin when KS has received all information necessary for the execution of the order and after receipt of the advance or the first instalment. If a binding term is expressly provided in the contract, any delay can on no account give cause to a termination of the agreement, only to compensation limited to a maximum of 5 % of the order. Moreover, there can be no claim to compensation if the terms of payment were not strictly observed.
Inspection At completion, client is entitled to have the quality of the material used and parts checked and verified. All costs, extra work, etc. resulting from such an inspection or from the intervention of an inspection or controlling service, caused by adaptations, additions of drawings, delay of execution, etc. are at client's expense.
Prices-Payment Our prices and rates are based on a normal working week of 38 hours. For overtime, shift work, night work and work on Saturdays, Sundays and public holidays, the usual surcharges apply. The invoices are to be paid immediately on receipt, net and without discount. Prices are subject to internationally accepted price revision formulas. In case payments are not made on time, moratory interests to the amount of 1.5 % per month are due from the expiration date by right and without serving notice. Moreover, an amount of 15 % of the invoice amount due has to be paid by way of fixed compensation. In case payments are not made on time, the completion time is automatically extended with at least the period of delay in payment. Moreover, KS is authorised to stop the works with a simple registered letter to client. KS can also take any necessary measures of storage at client’s expense without prejudice to all rights and claims.
Transfer of risk and Reservation of title All goods are transported and remain on site or elsewhere at client’s risk, even in case of free destination. The delivered goods remain the property of KS until full payment of the price. When client does not meet his obligations to payment, KS is free to either aim at the completion of the agreement or to annul the agreement, which can be done by notice by registered letter to client, in which case the annulment takes effect from the date mentioned on the delivery receipt of the registered letter.
Guarantee and liability KS undertakes to remedy any defect in the equipment directly furnished by KS and which defects results from a faulty design, materials or workmanship. This obligation is limited to defects on materials or workmanship which appear during a period of max.one year after delivery or erection of the equipment to be executed by KS or max. fifteen months after delivery if no erection as ordered takes place within that period. This guarantee consists in the obligation to repair or replace, at the choice of KS, of the equipment accepted as faulty or defective. Moreover, subject as hereinafter set out, KS shall remedy any failure in the engineering or design performed by KS as far as it is clearly proven that the failure was within the control of KS and the assumed standards and conditions are strictly fulfilled. This guarantee is given up to one year after the start up of the installation but max. fifteen months after erection. This guarantee is strictly limited to improve or redraw the defective drawings/plans/study. When the order only includes a study or engineering, the compensations that could be due by KS are limited to 20% of the amount of KS’ s engineering fee. Repair or replacement during the guarantee period shall not result in an extension of this period. No result is guaranteed. In any case, if by explicit written stipulation in the contract a result should be guaranteed, this result shall only be guaranteed as far as the assumed standards and conditions are strictly fulfilled, and the guarantee shall be expressly limited within the limits as provided, to remedy the proven defects or failure which are under control of KS. Except for what has been determined above, KS will not be obliged to any other guarantee, compensation or liability. The liability for faults, hidden or not, is always limited to the amount of invoice of the defective good, regardless of the amount of the damage.
Complaints Any complaint has to be communicated to KS in writing immediately after delivery/execution. Any liability of KS is extinguished when client executes repairs or replacement works himself or by third parties.
Insurances Apart from a Construction All Risk Insurance KS will contract at the request and expense of client, KS has contracted at its own expense a Third Party Liability Policy with an insured amount for Public, Products and Professional Liability for Bodily Injury and Property Damage and a Workers Compensation policy. If client wants to take the CAR insurance himself, he’s obliged to provide for cover for engineering mistakes during conception, erection, start-up and guarantee period (faulty part/full makers guarantee).
References KS is free to include the works, services, study or engineering in her reference list as well as to make the name of the installation and the co-operation with client public in her commercial relations. KS is also authorised to visit the installation with potential clients.
Liability KS cannot be held liable for any indirect, resulting and/or immaterial damage. KS cannot be held liable for defects/faults/loss/damages or any consequences due to misuse/normal wear/improper use/incorrect intervention by client or third parties, force majeure or other circumstances beyond her control or indeterminable causes.
Applicable Law The rights of the parties are governed by the Belgian Law, to the exclusion of the Convention on International Sales of Goods of 11/04/1980 and any rule on conflict of law. Insofar that one of the above-mentioned clauses would be judged to be invalid or unfeasible, other clauses of these conditions remain valid. Any dispute which arises as a result of the execution or interpretation of the agreement, will fall within the exclusive jurisdiction of the courts of the district of Mechelen (Belgium). Should KS be the plaintiff, it reserves the right to bring the case before a different lawcourt.
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GENERAL PURCHASE CONDITIONS - Edition of March 1st, 2006
Keppel Seghers Group of Companies, Hoofd 1 - B-2830 Willebroek, hereafter referred to as "KS"
All orders, proposals, undertakings and deliveries of goods and services by KS are effected according to the conditions determined hereafter. The conditions of KS take priority over all conditions of contracting party (hereinafter supplier), notwithstanding the way or time at which these conditions were communicated. Departures from the conditions of KS are only accepted when they are approved of in writing by the authorised persons of KS. The acceptance of orders, even tacitly, implies acceptance of the whole of the present conditions.
Orders All orders have to be drawn up in writing and signed by the responsible person of KS. Orders are presumed to be accepted by supplier unless the contrary is notified in writing within 8 days after order date. If supplier fails to carry out the order after its acceptance by him, even tacitly, he is liable to a lump sum of 30% of the total order value, notwithstanding the right of KS to claim compensation for its real damages.
Changes to order KS shall has the right to make any changes in the order (a.o. in KS's drawings and specifications). If such change affects prices/delivery/completion dates, supplier must immediately inform KS. Supplier has to receive KS’s written agreement as to said price/delivery/completion date change before proceeding, otherwise he waives the right to claim such charges or delays.
Prices Supplier is assumed to be fully aware of the nature and scope of the order for which he is tendering a bid. Consequently the prices, notified or subscribed by supplier, are definite from the acceptance by KS and are not susceptible to change. All automatic price adjustment clauses are not considered to be written.
Delivery Supplier shall perform the order in compliance with the sound principles of good craftsmanship and with new materials. All materials, goods and performances of services have to be delivered in the offices or any other location indicated by KS, at the time determined to this end.
Terms Terms agreed upon are binding and have to be considered by supplier as an obligation of result. Supplier has to consider that other works and/or deliveries can be effected at the same time. For each infringement of (part of) a deadline, supplier shall at least be liable to pay to KS a penalty of 1% of the total order value for the first calendar week, on the understanding that this percentage shall be raised by 2% of the total order value for each additional calendar week. KS has then the right to cancel the order immediately, without any formal notice, after expiring of the fixed date; to put an end to the works by supplier; to carry out the works themselves or let them be carried out by third persons. This does not diminish the right of KS to claim compensation for its real damages, which includes claims (of fixed or contractual nature), which would be brought against KS by client or third parties.
Risk All goods and materials are transported at supplier's risk, up to the moment that they are delivered and accepted.
Acceptance The acceptance of materials, goods and services has to be effected by KS explicitly and in writing. Tacit acceptance cannot be called upon by supplier. Signing of sending forms and the like does not imply acceptance of the quality of the goods, but only an acceptance of the quantity as far as its checking is possible at first sight. Goods or performances which do not meet the requested or agreed requirements, either in quantity or in quality, can be simply refused. KS may at any time & place investigate on the quality of the materials used by supplier or his (sub) contractor. At the request of KS rejected performances and/or deliveries will be replaced completely and immediately by supplier at his expenses. The acceptance does not imply that KS surrenders the right to call in later on hidden or non-hidden defects. Resale or application of the materials is not a sign of acceptance. The refusal of goods and/or performances because of the above mentioned reasons cannot be brought forward by supplier to exceed his delivery term.
Warranty against eviction and defects of the sold matter (articles 1626 ff. Civil Code). All restrictions or changes which supplier should want to call upon against these articles are considered not written. Supplier is answerable for warranty against hidden and non-hidden defects, even if he did not know them or did not have the possibility to know them. Supplier also is answerable for warranty against eviction and flaws after the resale or application of the goods or materials by KS or by third persons.
Payments Payments will be made 120 days or more end of month of receipt by KS of the complete and accurate invoice. Payments can also legally be made by bill of exchange for a period of max. 90 days and with interest and costs for account of buyer. Payments cannot be considered as approvals of sections or the whole of the order.
Ownership KS remains owner of all plans, drawings, calculations and data which are communicated to supplier as a result of an order. Copying, application or communication to third persons is prohibited. Violation of this article results in the payment of a compensation of which the minimum lump sum is estimated at EUR 120.000.
Liability Supplier carries full liability during the realisation of the works, for damage inflicted on KS or on third persons, even if the damage should originate or result from the use of KS' s materials. Supplier will insure himself sufficiently against all risks and will present evidence hereof at first request. At the nonfulfilment of the agreement by supplier, even if nonfulfilment is the result of coincidence or circumstances beyond his control, supplier will be responsible for all damages which KS would suffer as a result and will especially have to pay the compensations to which KS could be held liable or sentenced by third persons, even if these compensations were agreed upon by contract and by lump sum.
End of agreement KS can at all times request the termination of the agreement in case of the decease/bankruptcy/composition/any negative change in creditworthiness of supplier (such as protested bills of exchange, bank information...). If the order of KS is part of a main contract, the order shall automatically be terminated or postponed if client terminates or postpones the main contract for whatever reason. Supplier may only demand remuneration pro rata the work carried by him and pro rata the remuneration which KS receives from its client for the works carried out by supplier.
Liability KS cannot be held liable for any indirect, resulting and/or immaterial damage. KS cannot be held liable for defects/faults/loss/damages or any consequences due to misuse/normal wear/improper use/incorrect intervention by client or third parties, force majeure or other circumstances beyond her control or indeterminable causes.
Applicable Law The rights of the parties are governed by the Belgian Law, to the exclusion of the Convention on International Sales of Goods of 11/04/1980 and any rule on conflict of law. Insofar that one of the above-mentioned clauses would be judged to be invalid or unfeasible, other clauses of these conditions remain valid. Any dispute which arises as a result of the execution or interpretation of the agreement, will fall within the exclusive jurisdiction of the courts of the district of Mechelen (Belgium). Should KS be the plaintiff, it reserves the right to bring the case before a different lawcourt.
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Keppel Seghers Belgium NV
Company Registration Number: RPR Mechelen 0453.102.935
Seghers Keppel Technology for Services & Machinery Zele NV
Company Registration Number: RPR Mechelen 0477.504.550
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