| Smartweld Center BV Pantserschipstraat 179C 9000 Gent BE 0759.850.884 | Document reference General Terms and Conditions of Sale – Services, revision 0 |
1. PURPOSE AND SCOPE
1.1. These conditions enter into force after the Client has accepted Smartweld Center B.V.’s offer by post, e-mail or fax, or upon receipt of a document signed by the Client or an authorised representative of the Client. The conditions listed in this document apply to the entire offer as well as to any other assignment carried out by Smartweld Center B.V. for the same Client.
1.2. The General Terms and Conditions form the basis for commercial negotiations between the Client and Smartweld Center. These General Terms and Conditions (together with any Agreement / Quotation) contain the entirety of what has been agreed between the Parties and replace all previous letters of intent, arrangements, contracts or agreements between the Client and Smartweld Center having the same subject matter. They are supplemented by the Parties with specific conditions agreed in writing. Any provisions that conflict with or alter the scope of the General Terms and Conditions must be approved in advance and in writing by Smartweld Center.
1.3. The Client acknowledges that it is fully aware of the General Terms and Conditions and agrees to be bound by them without reservation. The Client hereby waives the application of any conflicting conditions, in particular its own general purchasing conditions, which cannot be invoked against Smartweld Center, even if Smartweld Center is aware of them.
2. DEFINITIONS
For the interpretation of the General Terms and Conditions, the terms below, when beginning with a capital letter, have the following meaning, with the singular also being understood to include the plural and vice versa.
2.1. “Order” means any written document confirming the Client’s acceptance of the Quotation.
2.2. “Client” means any natural person or legal entity entering into a quotation, order or agreement with Smartweld.
2.3. “Quotation” means one or more documents issued by Smartweld Center describing the specific technical and financial conditions for the performance of the Services and referring to the General Terms and Conditions.
2.4. “Smartweld Center” means the legal entity as identified in the Quotation.
2.5. “Business Day” means a normal working day within Smartweld Center. Periods stated in “days” without further specification are expressed in calendar days.
2.6. “Delivery” means the items (including inspection or control reports and reporting) stated in the Quotation and delivered by Smartweld Center to the Client in connection with the Services.
2.7. “Party” means Smartweld Center or the Client.
2.8. “Services” means the service(s) detailed in the Quotation and ordered by the Client.
2.9. “Assignment” means any training, qualification, engineering assignment, inspection, consultancy assignment, project execution or other service accepted by Smartweld.
2.10. “Site” means a geographical location stated in the Quotation where Smartweld Center performs the Services.
2.11. “Documentation” includes, among other things, reports, inspection reports, certificates, WQRs, WPSs, PQRs, drawings, calculations, advice, measurement data, photographs, videos, scans, digital models and other technical documents.
3. SCOPE AND NATURE OF THE SERVICES
3.1. Smartweld Center organises its services around, among other things, three Business Units: Welding Academy, Quality Assurance & Control, and Project & Asset Integrity.
3.2. The specific content of an Assignment is determined by the applicable Quotation, order confirmation, agreed technical scope and, where relevant, applicable standards, codes and acceptance criteria.
3.3. Unless expressly agreed otherwise in writing, Smartweld Center performs its engineering, consultancy, inspection and other technical services as a professional obligation of means.
3.4. Smartweld Center acts with the care and expertise that may reasonably be expected of a specialised technical service provider.
4. ORDERING OF SERVICES
4.1. Each request from the Client results in a Quotation from Smartweld Center containing the description of the Services, the intervention schedule and the applicable specific conditions. Unless otherwise indicated, each Quotation is valid for one (1) month from the date of issue.
4.2. Following the negotiations and within a period of five (5) Business Days, the Client sends an Order stating the reference of the Quotation.
4.3. In the absence of an Order within the agreed period, Smartweld Center may refuse any request to perform the Services without any compensation being due to the Client.
4.4. Unless otherwise agreed in writing by Smartweld Center, no provision in the Order may deviate from the conditions set out in the Quotation.
4.5. An agreement is concluded, among other ways, by:
• Written or electronic acceptance of a quotation;
• Written confirmation of an order;
• Electronic signature;
• Confirmation by e-mail;
• Or commencement of performance with the Client’s consent.
4.6. In the event of conflicting general terms and conditions, the following order of precedence applies in principle:
1. A separate written agreement or expressly agreed special conditions signed by both Parties;
2. These General Terms and Conditions;
Where both parties refer to their own general terms and conditions, their applicability and any conflict between them shall be assessed in accordance with Belgian law. (see Article 26)
4.7. The mere receipt, payment, administrative processing or execution of a purchase order from the Client does not automatically imply that Smartweld Center has accepted separate liability, warranty, penalty, indemnity or other contractual provisions of the Client.
5. CANCELLATION OF SERVICES
5.1. If a Service cannot be performed on the agreed date due to a cause directly or indirectly attributable to the Client, the Parties shall agree on a new date for the service. In this case, Smartweld Center may charge the Client a postponement fee calculated in accordance with the conditions set out in the Quotation or, failing this, on the basis of the actual costs incurred, with a minimum of three hundred and fifty (350) euros excluding VAT. If no agreement is reached on a new intervention date, the Client shall be deemed to have withdrawn the Order.
5.2. If the Client withdraws a Service before the agreed start date, Smartweld Center may charge all costs incurred before cancellation, as well as a lump-sum termination fee calculated in accordance with the conditions set out in the Quotation or, failing this, in accordance with the following provisions:
5.2.1. If the request is made more than ten (10) Business Days before the agreed date, the Client shall not owe any cancellation fee, except for definitively incurred and non-recoverable external or project-specific costs;
5.2.2. If the request is made between ten (10) Business Days and five (5) Business Days before the agreed date, Smartweld Center shall charge twenty-five percent (25%) of the amount of the cancelled Services, with a minimum of three hundred and fifty (350) euros excluding VAT, plus definitively incurred and non-recoverable external costs;
5.2.3. If the request is made between five (5) Business Days and forty-eight (48) hours before the agreed date, Smartweld Center shall charge fifty percent (50%) of the amount of the cancelled Services, with a minimum of three hundred and fifty (350) euros excluding VAT, plus definitively incurred and non-recoverable external costs;
5.2.4. If the request is made less than forty-eight (48) hours before the agreed date, Smartweld Center shall charge one hundred percent (100%) of the amount of the cancelled Services, with a minimum of three hundred and fifty (350) euros excluding VAT.
5.2.5. The calculation shall take into account avoided costs and capacity that could still be used for other work.
5.2.6. For larger projects, shutdowns, special material orders, external laboratory costs or specific mobilisations, separate cancellation conditions may be included in the Quotation.
6. CLIENT OBLIGATIONS AND PERFORMANCE OF THE SERVICES
6.1. The Client shall make available to Smartweld Center, on time and at no cost to Smartweld Center, all items stated in the Quotation that are required for the performance of the Services.
6.2. The Client shall cooperate actively and regularly with Smartweld Center, in particular by:
6.2.1. providing in good time all specific instructions and information required for or capable of affecting the performance of the Services. This may include, among other things:
• drawings;
• technical specifications;
• material certificates;
• standards and codes;
• acceptance criteria;
• safety information;
• previous inspection data;
• project or installation data.
• Smartweld may reasonably rely on the accuracy and completeness of the information provided.
6.2.2. taking all necessary measures to remove or remedy obstacles or interruptions to the performance of the Services;
6.2.3. informing Smartweld Center as soon as possible of difficulties that may affect the proper performance of the Services;
6.2.4. appointing a responsible person who is responsible for monitoring and receiving the Services and who is authorised to give instructions to Smartweld Center on behalf of the Client and, if necessary, to enter into contractual obligations on behalf of the Client;
6.2.5. informing Smartweld in advance of all relevant risks, including, where applicable:
• asbestos;
• lead-containing or other hazardous coatings;
• hazardous substances;
• ionising radiation;
• explosion hazards;
• confined spaces;
• risk of falling or drowning;
• active or pressurised installations.
6.3. Smartweld Center shall perform the Services in accordance with the instructions accepted by the Client or, in the absence of such instructions, according to the methods Smartweld Center considers appropriate, taking into account technical, operational, regulatory or financial constraints.
6.4. Unless otherwise stated in the Quotation, Deliveries shall be sent electronically to the address provided by the Client in the Order.
6.5. For Services requiring a sample, item or material belonging to the Client for the performance of the Services (hereinafter “Entrusted Goods”), as stated in the Quotation:
6.5.1. The Client shall deliver the Entrusted Goods at its own cost and risk within sufficient time to enable Smartweld Center to perform its Service. Delivery shall take place at the location and in accordance with the arrangements defined in the Quotation or another document accepted by Smartweld Center.
6.5.2. Unless otherwise agreed in writing, the Client must take back the Entrusted Goods within thirty (30) days after the Delivery relating to the Service has been sent. After this period, Smartweld Center may return them to the Client at the Client’s cost and risk and without further notice. However, at the Client’s request as stated in the Order, the Entrusted Goods may be retained by Smartweld Center for a period agreed by the Parties, provided that the Client bears the additional costs.
6.5.3. If Smartweld Center transports the Entrusted Goods, any material damage sustained by them shall be compensated up to their value or the cost of repair on the date of the incident, with a maximum of ten thousand euros (EUR 10,000).
6.5.4. Smartweld Center shall in no way be responsible for damage to the Entrusted Goods resulting from the use for which they were provided.
6.6. For Services requiring an intervention at the Client’s Site:
6.6.1. The Client shall make available to Smartweld Center, within the time and under the conditions stated in the Quotation, (i) means of access to all Sites, (ii) permits, (iii) samples and (iv) materials or equipment (including scaffolding or aerial work platforms and necessary isolations), as well as the associated technical documentation (including gas-free certificates), required for the performance of the Services;
6.6.2. It is the Client’s responsibility to communicate to Smartweld Center the hygiene and safety measures applicable to the Services performed at its Site by an external company, so that a risk analysis can be carried out and, if necessary, the prevention plan referred to in “Section 1 of Chapter IV of the Act of 4 August 1996” on Well-being at Work (Well-being Act) can be drawn up. In particular, the Client must indicate the specific risks to which Smartweld Center personnel may be exposed during the performance of the Services, including risks of exposure to ionising radiation, hazardous substances, biological agents, confined spaces and the risk of drowning and falling from height, as well as the precautions taken in this respect;
6.6.3. Smartweld Center shall take all reasonable measures to ensure that its personnel working at the Site comply with the hygiene and safety rules provided in advance.
6.6.4. Smartweld Center shall in no way be responsible for the management of equipment, installations, materials and/or works at the Client’s Site.
6.6.5. Smartweld Center may immediately suspend or refuse to commence work where the circumstances are not reasonably safe.
6.7. The presence of a third party during the performance of the Services may be accepted by Smartweld Center following receipt of a written request from the Client no later than forty-eight (48) hours before the start of the Services. The Client remains responsible for the third party and warrants that it complies with the safety rules applicable at the Site and the confidentiality obligations described in this agreement. Unless otherwise agreed in advance between the Parties, the third party may not interfere with the performance of the Services. Smartweld Center reserves the right to charge the Client for any additional costs resulting from the presence of the third party.
6.8. After performance of the Services and subject to full payment, Smartweld Center shall deliver the Deliverables to the Client. The Client must receive them within the periods stated in the Quotation or, failing this, within eight (8) Business Days after delivery. In the absence of written comments within this period, the Deliverables shall be deemed accepted by the Client.
6.9. To the extent that the Client itself provides specific characteristics or technical requirements relating to the Services, the Client remains solely responsible for the accuracy, completeness and suitability of this information. Smartweld Center cannot be held liable for any damage, delay, defect or non-conformity arising directly or indirectly from incorrect, incomplete or late information provided by the Client.
6.10. If a Check-in-at-Work notification is required in connection with the Services, the Client undertakes to inform Smartweld Center thereof in writing, in good time and before the start of the Services. In the absence of timely / correct notification, the Client shall be solely responsible for all resulting consequences such as fines, administrative sanctions, delays or additional costs. Smartweld Center can under no circumstances be held liable for the consequences of the Client’s failure to comply, or late compliance, with this obligation.
7. WELDING ACADEMY
7.1. Participation in welding training does not guarantee that a participant will pass an examination or qualification. The result may depend, among other things, on:
• the participant’s performance;
• the test piece produced;
• the applicable standard or code;
• acceptance criteria;
• examination and test results;
• assessments by competent external bodies.
7.2. The Client shall provide correct information about the participant and the desired qualification. Where it is not clear in advance which qualification is required, Smartweld Center may provide technical advice on the basis of the information available.
7.3. The final qualification range is determined by the test actually performed and the applicable standard or code.
7.4. Re-examinations, additional test pieces, additional tests or changes to the desired qualification may be charged separately.
7.5. Smartweld Center may suspend a practical activity if safety instructions are not complied with.
8. LIMITATIONS OF INSPECTION AND TESTING SERVICES FOR NON-DESTRUCTIVE TESTING (NDT)
8.1. The Client is informed that every examination has limitations and a recognised probabilistic nature. In particular:
8.1.1. No inspection procedure, even when applied in accordance with a standard or a specific proven procedure, can detect 100% of defects or systematically determine their nature and dimensions.
8.1.2. The limitations of non-destructive testing depend on the procedures, operating conditions, materials, the geometry of the area affected by the examination, the characteristics of the defects and the human factor.
8.1.3. NDT methods or techniques do not determine the characteristics of the physical defects themselves, but provide an assessment of indications that are only traces of the actual defect resulting from the interaction of a physical phenomenon with that defect.
8.1.4. Any subsequent intervention on the inspected element may alter the result of the initial inspection. Only a new inspection taking account of the new condition of the element can quantify its possible effects.
8.2. The Client is informed that the conclusions contained in the delivery documents are valid only on the date on which the relevant Service is performed.
8.3. Furthermore, since the delivery documents are based on the current state of knowledge and the instructions and information provided by the Client, the Client accepts that Smartweld Center cannot be held liable for any error, omission or inaccuracy resulting from incorrect or incomplete information provided to it.
8.4. Indicative tests are reported as such and do not replace a definitive quantitative laboratory analysis where such analysis is required.
9. COATING INSPECTIONS, DRONE INSPECTIONS AND 3D SCANNING
9.1. Depending on the Assignment, coating inspections may include, among other things, climate measurements, surface assessment, roughness measurements, Bresle testing, dry-film thickness measurements, adhesion tests, holiday testing and visual inspections.
9.2. Measurement results apply to the location examined, the technique used and the conditions at the time of performance.
9.3. Drone operations depend, among other things, on legal flight conditions, weather conditions, location, accessibility and operational safety. A drone operation may be postponed or interrupted where safe or legally permitted performance is not possible.
9.4. 3D scans, point clouds and digital models have the accuracy associated with the technique used and the agreed application. They do not automatically constitute land-surveying or certified dimensional measurements unless this has been expressly agreed in writing.
10. PROJECT & ASSET INTEGRITY
10.1. For fabrication, welding work, assembly, maintenance and repairs, Smartweld Center shall perform only the work agreed in advance with the Client.
10.2. If hidden defects, additional damage, material deviations or other circumstances that could not reasonably have been foreseen are identified during performance of the work, Smartweld Center shall inform the Client thereof as soon as possible.
If these circumstances affect the technical execution, the scope of the work, the schedule or the price, Smartweld Center is entitled to suspend performance of the work concerned until agreement has been reached with the Client on the further technical approach, the schedule and, where applicable, any additional costs.
Work resulting from such unforeseen circumstances and not included in the original agreement or Quotation shall be regarded as additional work and may be charged separately to the Client. If such additional work or the identified unforeseen circumstances affect the schedule, the originally agreed performance period may be extended accordingly. Such extension shall not be regarded as a delay or breach on the part of Smartweld Center and shall not give rise to any compensation payable by Smartweld Center.
10.3. For materials and components supplied by the Client, the Client is responsible for their identity, suitability, quality and conformity with the agreed specifications and intended application. Smartweld Center may rely on the identity and quality of the materials and components stated by the Client and is not required to inspect them before processing or machining unless otherwise agreed.
10.4. In the case of repair, maintenance or modification of existing installations or components that were not supplied, designed or installed by Smartweld Center, Smartweld Center is not responsible for the existing condition, proper functioning or suitability of those installations or components.
Smartweld Center is not responsible for existing damage, wear, corrosion, material degradation, hidden defects, construction or design defects or other defects outside the agreed repair or work area. Nor can Smartweld Center be held liable for damage, defects or failures arising from the existing condition of the installation or components, unless these are directly caused by a fault attributable to Smartweld Center in the performance of the agreed work.
10.5. Welding work shall be performed in accordance with the agreed and applicable procedures.
10.6. Smartweld Center is not required to carry out an instruction that is technically irresponsible or contrary to applicable safety or legal requirements.
11. EXTERNAL EXPERTS AND PARTNERS
11.1. Smartweld Center may call upon suitable parties for specialised parts of an Assignment, including:
• employees;
• independent experts;
• subcontractors;
• strategic partners;
• laboratories;
• inspection and certification bodies;
• Notified Bodies.
11.2. Where Smartweld is contractually responsible for the Assignment, Smartweld remains responsible to the Client for the correct performance of the agreed work.
11.3. Official laboratory results and independent certification or inspection decisions nevertheless remain the responsibility of the relevant independent body.
12. MODIFICATION, ADDITIONAL WORK AND SUSPENSION OF SERVICES
12.1. Performance, reporting and delivery periods are indicative unless they have expressly been agreed in writing as binding.
12.2. Any request by the Client to modify the Order during its performance is subject to a written agreement between the Parties, in particular with regard to the consequences for performance deadlines and price, as well as an obligation on the Client to amend the original Order.
12.3. Where reasonably and practically possible, additional work shall be agreed in advance. Additional work may arise, among other things, from:
• additional defects;
• additional inspections or re-inspections;
• amended drawings;
• additional reporting;
• changed standards or acceptance criteria;
• additional materials;
• changed Site conditions;
• new instructions from the Client.
12.4. If (i) the Client requests suspension of the performance of the Services for reasons specific to the Client or related to an external event beyond Smartweld Center’s control (e.g. unavailability of samples, products, materials or equipment, bad weather, strike, etc.) or (ii) a Smartweld Center employee is forced to wait an abnormally long time to perform the Service, the Client shall bear all costs (including waiting-time costs) incurred by Smartweld Center as a result of the inability to compensate for the disruption and loss of activity.
12.5. After more than forty-eight (48) hours of suspension, Smartweld Center may treat the Order as cancelled by the Client. The Client shall pay for the Services already performed up to the cancellation date, together with all related costs, and a non-dischargeable compensation equal to one hundred percent (100%) of the amount excluding VAT of the unperformed Services.
12.6. Waiting time, additional travel, mobilisation or other demonstrable additional costs arising from circumstances for which the Client is responsible may be charged separately.
13. PRICES AND INVOICING
13.1. The price of the Service is stated in the Quotation and is exclusive of tax (“excl. VAT”). The Client shall pay all applicable taxes on the invoiced price at the applicable rate and in accordance with the methods prescribed by law.
13.2. Unless otherwise stated in the Quotation, travel and accommodation costs incurred by Smartweld Center, as well as additional costs required for the performance of the Services, shall be invoiced separately to the Client on the basis of an expense statement. These costs may include, among other things:
• travel time and travel;
• mileage allowance;
• tolls and parking;
• accommodation costs;
• transport;
• external laboratory costs;
• inspection and certification costs;
• special materials and consumables;
• specialised equipment;
• permits;
• other third-party costs directly related to the Assignment.
13.3. Unless otherwise stated in the Quotation, on the effective date of the Order the Client undertakes to make an advance payment of thirty percent (30%) of the price of Services performed on a lump-sum basis.
13.4. The price of the Services is conditional upon fulfilment of all conditions defined in the Quotation and, in particular, upon the Client fulfilling the obligations stated therein. If any of these conditions is not met, Smartweld Center may adjust the price of the Services taking account of the costs incurred.
13.5. Unless otherwise stated, the price of Services with a duration of more than twelve (12) months shall be adjusted annually by Smartweld Center on the anniversary of the Order in accordance with the change in the wage and consumer price index.
13.6. Unless otherwise agreed in the payment terms of the Quotation, Smartweld Center shall invoice the Service immediately after it has been performed.
13.7. Unless otherwise stated in the Quotation, the Services are performed on Business Days from 07:00 to 17:00 (with a maximum working period of 10 hours), with prices increased as follows:
13.7.1. by fifteen percent (15%) for daytime shift work from 06:00 to 14:00 and from 14:00 to 22:00;
13.7.2. by fifty percent (50%) on Saturdays (except public holidays);
13.7.3. by seventy-five percent (75%) for Services performed during weekday night shifts from 22:00 to 06:00;
13.7.4. by one hundred percent (100%) on Sundays and public holidays;
13.7.5. by two hundred percent (200%) for night-shift work on Sundays and public holidays;
13.8. In the event of a dispute regarding an invoice (for example, a pricing error or incorrect invoicing address), the Client must notify its objection in writing. This notification must be specific and reasoned and must be submitted to Smartweld Center within seven (7) days of the invoice date. Failing this, the invoice shall be deemed correct and free from errors. The undisputed portion remains payable.
13.9. The Client is required to communicate in writing to Smartweld Center, in good time and before commencement of the work, all information relevant to invoicing, including but not limited to the nature of the work, the applicable VAT regime, any reverse-charge VAT mechanism and correct invoicing details.
If the Client fails to provide the above information in writing in advance, Smartweld Center shall not be deemed liable for incorrectly issued invoices or incorrect application of the VAT regime.
13.10. If, after invoicing, it appears that the information provided by the Client was incomplete, incorrect or late and Smartweld Center must therefore correct invoices, issue credit notes or carry out new invoicing, Smartweld Center may charge a lump-sum administrative fee for processing these changes. The amount of this administrative fee is EUR 250.00.
13.11. If the Client requests Smartweld Center to perform work without a clear, complete and correct order/data, the Client agrees that Smartweld Center shall invoice on the basis of the information reasonably available to Smartweld Center at that time. Any subsequent invoicing changes resulting from late or missing information on the part of the Client shall be entirely at the Client’s expense. An administrative fee of EUR 250.00 shall be charged for this.
14. PAYMENT TERMS
14.1. Unless otherwise stipulated in the Quotation, invoices issued by Smartweld Center are payable by bank transfer within fifteen (15) days of the invoice date.
14.2. Where (i) the Client’s financial solvency shows insufficient ratios or (ii) Smartweld Center has previously experienced difficulties with the Client in relation to earlier Services, such as collection problems, repeated cancellation of appointments and/or late cancellation of appointments, Smartweld Center reserves the right to make performance of the Services conditional upon payment of a deposit or advance payment of the price of the Service. Smartweld Center also reserves the right, where appropriate, to cancel the Services, in which case compensation shall be charged to the Client.
14.3. Any Order concluded after a judicial reorganisation judgment has been issued in respect of the Client and for the entire duration of the proceedings automatically requires advance payment for the Services.
14.4. No discount shall be granted to the Client in the event of early payment (in whole or in part), nor in the event of cash payment.
14.5. Any amount not paid by the invoice due date shall, by operation of law, from the day after the due date until full payment, bear late-payment charges at a rate of twelve percent (12%) of that amount. These late-payment charges shall be capitalised daily, converted into a daily rate and calculated on the total amount including VAT (“incl. VAT”) of each invoice. In addition, a lump-sum amount of EUR 40 shall be due for collection costs. Any subsequent payment, irrespective of the reason, shall immediately and preferably be applied against the oldest outstanding debt.
14.6. Any payment delay, irrespective of its cause, shall result in suspension of the performance of the Services after notification to the Client by Smartweld Center by any means. In the event of continuing payment delay, Smartweld Center reserves the right to cancel the Order and claim compensation for the loss suffered, in the form of compensation equal to fifteen percent (15%) of the unpaid amounts. In that case, the part of the Services already performed and the associated costs shall be invoiced to the Client and shall become immediately due and payable. The Client remains fully responsible for the consequences and any damage resulting from this suspension.
14.7. The Client may not withhold, reduce or set off payment of outstanding or payable invoices against any existing or future debt of any kind without the prior consent of Smartweld Center. Failing this, any amount withheld, reduced or set off must be reimbursed to Smartweld Center immediately and upon first request by the Client.
15. WELDING PROCEDURES AND WARRANTY CONDITIONS
15.1. Unless otherwise stipulated in the Quotation, Smartweld Center warrants that the Service complies with the specifications referred to in Article 6.3 for a period of three (3) months from the date of delivery of a Deliverable. In the event of non-conformity of the Deliverable, the Client may obtain the application of the following warranty (the “Warranty”).
15.2. Under the Warranty, Smartweld Center undertakes, at its option, (i) to re-perform at its own expense the Service relating to the non-conforming Deliverable, or (ii) if it is impossible to re-perform it, to reimburse the Client, by means of a credit note, the amount paid corresponding to the part of the Service relating to the non-conforming Deliverable.
15.3. Smartweld Center shall bear only labour costs, costs relating to travel by its personnel to the Site and transport of the equipment required to re-perform the Service. Specifically excluded are the costs of dismantling and reassembling the goods to which the re-performance of the Deliverable relates (including the costs of preparing the goods to the original condition described in the Quotation and all costs relating to accessibility or transport of those goods).
15.4. The Warranty is excluded if (i) the non-conformities were visible upon receipt of the Deliverable; (ii) the environment and the goods to which the re-performance of the Deliverable relates differ from their original condition or prevent performance of the Services under the conditions of the Quotation; and (iii) the Client itself or a third party has re-performed the Deliverable without Smartweld Center’s written consent.
15.5. The Warranty is the only warranty applicable by Smartweld Center in the performance of the Services and therefore excludes any other statutory warranty. Interventions under the Warranty shall not extend its duration. In all cases, the Warranty is limited to the liability caps set out in Article 20.
15.6. The Client acknowledges that performance of the Warranty is the sole remedy and constitutes full compensation in the event of non-conformity of a Deliverable, except in the event of fraud or gross fault by Smartweld Center.
15.7. Smartweld Center’s validated welding procedures (including procedures for piping, construction works, HVAC installations and related applications) shall at all times govern the performance of all welding work/welding procedures.
If the Client requests, for any reason whatsoever, a deviation from Smartweld Center’s validated welding procedures, Smartweld Center may only proceed with such deviation subject to prior written confirmation and agreement between Smartweld Center and the Client.
15.8. Any deviation from Smartweld Center’s validated welding procedures at the Client’s request shall automatically result in the lapse of any form of warranty, including the warranty relating to quality, conformity, durability or tightness of the welding work performed.
15.9. By accepting the General Terms and Conditions, the Client expressly accepts that Smartweld Center cannot be held liable for any damage, defect or non-conformity arising from or related to a deviation from the validated welding procedures requested by the Client. Unless otherwise agreed in writing, any additional risks arising from such deviations shall be borne entirely by the Client.
16. DOCUMENTATION, COMMENTS AND TEST PIECES
16.1. Documentation, reports, records, certificates and other documents prepared by Smartweld Center relate exclusively to the Assignment and work for which they were prepared. They may not be used for other work, installations, components or applications other than those for which they are expressly intended.
16.2. The Client must notify Smartweld Center in writing as soon as possible, and preferably within eight (8) Business Days after receipt, of any visible administrative or technical errors, comments or deviations in the Documentation provided by Smartweld Center.
16.3. Documentation provided by Smartweld Center may not, without Smartweld Center’s prior written consent, be amended, shortened or taken out of its original context in a manner that could alter its content, scope or technical meaning or lead to a misleading representation.
16.4. Where the Client entrusts test pieces, samples, materials, components or other goods to Smartweld Center for destructive tests, testing, analyses or other examinations in which damage or destruction is inherent in the examination method applied, the Client accepts that such goods may be wholly or partly damaged, altered or destroyed. Smartweld Center cannot be held liable for this insofar as the damage or destruction is the normal and foreseeable consequence of the agreed examination method.
16.5. Remaining materials, components, test pieces, samples or other goods belonging to the Client after completion of the Assignment shall, unless otherwise agreed in writing, be retained for a maximum of thirty (30) calendar days after notification to the Client. The Client must collect them at its own expense within this period. After expiry of this period, Smartweld Center is entitled, insofar as legally permitted, to dispose of the goods.
17. INTELLECTUAL PROPERTY
17.1. All general methods, procedures, templates, models, software, training materials, processes, know-how and other materials used or developed by Smartweld Center in connection with its Services remain the property of Smartweld Center. Performance of an Assignment or delivery of Documentation does not entail any transfer of intellectual property rights unless expressly agreed otherwise in writing.
17.2. After full payment of the amounts due, the Client obtains a non-exclusive and non-transferable right to use the Documentation specifically prepared for the Client, solely for the agreed project and agreed purpose. The Client may not use this Documentation for other projects or purposes without Smartweld Center’s prior written consent.
17.3. Training materials, course materials, manuals and other training documentation made available by Smartweld Center may not, without Smartweld Center’s prior written consent, be copied, reproduced, distributed, disclosed, adapted or commercially exploited, in whole or in part. Nor may the Client use these materials as a basis for organising or offering training to third parties.
17.4. The provisions of this Article do not affect third-party intellectual property rights in the relevant materials, Documentation, software or other works.
18. CONFIDENTIALITY
18.1. The Parties shall treat non-public technical, commercial and organisational information as confidential. This obligation applies during the Assignment and for five years thereafter. Information that remains protected as a trade secret shall remain confidential for as long as it retains that character.
18.2. Each Party shall take the necessary measures to ensure the highest level of confidentiality with respect to all information expressly identified as confidential by either Party and to which it has had access during the negotiation phase and the performance of the Services. After performance of the Services, the Party receiving the confidential information shall return or destroy it at the request of the Party that provided it.
18.3. During performance of the Services and for five (5) years after completion of the Services, the receiving Party undertakes (i) not to disclose the information to any third party without the prior written consent of the providing Party, (ii) to use the information solely for performance of its obligations under the Order, and (iii) to safeguard the confidentiality of the information by treating it with the same care as its own confidential information.
19. PERSONAL DATA
19.1. Each Party shall take all necessary precautions to ensure the security of personal data in accordance with the conditions prescribed by law.
19.2. If the Client, as controller, provides personal data to Smartweld Center, the Client shall ensure that such transfer is carried out in accordance with the law. Before processing begins, the Client shall provide Smartweld Center with all instructions and conditions relating to processing carried out on its behalf. In the absence of prior transfer, the Client shall indemnify and hold Smartweld Center harmless against any claims by third parties.
19.3. Smartweld Center, as a “processor” within the meaning of data-protection law, shall take the necessary technical and organisational measures to ensure the security of personal data and the rights of the persons whose data have been collected (the right to information, right of access, right to rectification and right to erasure, right to restriction of processing, right to data portability, etc.). In addition, Smartweld Center shall use and retain personal data solely for performance of the Order and in accordance with the Client’s written instructions.
20. LIABILITY
20.1. Smartweld Center’s liability is in all cases limited to direct damage that is the direct and proven consequence of a serious fault or intentional fault attributable to Smartweld Center in the performance of the agreement. Irrespective of the nature, basis and conditions of any action brought by the Client, Smartweld Center’s liability for direct damage may not exceed the higher of the following two amounts: (i) the amount of the Order, or (ii) the amount excluding VAT actually paid by the Client for the Services performed during the twelve (12) months preceding the first event giving rise to the claim. This limitation does not apply to bodily injury or in the event of gross negligence. Smartweld Center’s liability remains limited to the amounts for which it is insured.
20.2. Smartweld Center cannot be held liable for any indirect damage, including, among other things: loss of profit/loss of turnover, production loss, loss of customers, reputational damage, delays or any other consequential damage. Smartweld Center is not required to compensate the Client for damage arising from an incident involving ionising radiation sources, claims by third parties, reputational damage or the consequences of loss of use of equipment (including an aircraft), arising from performance of the Order or use of the Deliverables by the Client.
20.3. Any claim by the Client must be received by Smartweld Center by registered letter with acknowledgement of receipt within a maximum period of six (6) weeks from the date on which the Client became aware, or should have become aware, of the event giving rise to the claim. For Orders governed by a law other than Belgian law, and unless a mandatory statutory provision provides otherwise, this period is extended to ninety (90) days. Failing this, the claim shall be time-barred.
20.4. The Client agrees to indemnify and hold Smartweld Center harmless against any claim by third parties (including the Client’s insurer) against Smartweld Center, irrespective of the basis of the claim, in connection with performance of the Services, insofar as the amount imposed on Smartweld Center as a result of that claim exceeds the cap referred to in Article 20.1.
20.5. The Client acknowledges that Article 20 constitutes an essential condition of the contract relating to performance of the Services, without which that contract would not have been concluded.
20.6. Smartweld Center cannot be held liable for damage resulting from:
• incorrect or incomplete information provided by the Client;
• instructions, decisions or actions of the Client or third parties;
• circumstances beyond Smartweld Center’s control, including force majeure;
• work performed under the supervision, direction or instruction of the Client.
20.7. To the extent permitted by law, the contractual defences and valid limitations of liability shall also benefit the directors, employees, independent experts, subcontractors and other auxiliary persons of Smartweld.
21. INSURANCE
21.1. Each Party is required, at its own expense, to take out appropriate insurance covering its responsibilities in connection with performance of the Services, including in particular risks relating to professional liability, employer’s liability and damage to property.
21.2. The Client acknowledges that Smartweld Center is not an insurer or guarantor and therefore assumes no liability in that capacity. If the Client seeks protection against losses or damage to its products and activities, it must take out appropriate insurance with professional insurers, without recourse against Smartweld Center.
22. FORCE MAJEURE / UNFORESEEN EVENTS / CHANGED CIRCUMSTANCES
22.1. Smartweld Center cannot be held liable for non-performance or delay in performance of the Services due to a cause beyond its control, including, but not limited to, force majeure, faults by the Client or a third party, fire, prolonged cold, flooding, quarantine restrictions, wars, staff shortages, shortages of raw materials or means of production (including delays in reloading sources), source incidents, strikes or social conflicts involving one or more employees who are not Smartweld Center personnel, delays in transport or travel, or for any other reason beyond Smartweld Center’s control (including theft, loss or destruction of entrusted goods).
22.2. If Smartweld Center is unable to perform its obligations due to one of the events referred to in Article 22.1, Smartweld Center shall immediately notify the Client in writing of the occurrence of the event, stating the cause and the expected duration of any delay or non-performance of its obligations resulting therefrom. Insofar as the delay or non-performance is the direct consequence of such an event, the Client shall not be entitled on that basis to any compensation, penalty, price reduction or other payment from SMARTWELD CENTER.
22.3. If, after conclusion of the Agreement, changed circumstances arise that make performance of the Agreement exceptionally burdensome and significantly disrupt the contractual balance between the Parties, the Parties shall consult in good faith on a reasonable adjustment of the Agreement, taking into account the applicable statutory provisions.
23. SPECIFIC CONDITIONS IN THE EVENT OF A PANDEMIC
23.1. The Parties shall in good faith seek to take all reasonably possible measures to continue performance of the Services, taking account of the circumstances and instructions of the administrative authorities, so as to safeguard at all times the health and safety of their respective employees and the third parties for whom they are responsible. The Parties shall in good faith discuss the allocation of the burden of new measures exclusively related to a pandemic and its consequences imposed by a competent public authority.
23.2. Suspension of all or part of the obligations shall not prevent payment by the Client of amounts due to Smartweld Center for Services already performed on the date of suspension.
24. TERMINATION
24.1. The Order may be terminated early by either Party in the event of non-performance by the other Party of any of its contractual, statutory or regulatory obligations. Early termination shall take effect fifteen (15) days after a notice of default, which remains without effect, has been sent by registered letter with acknowledgement of receipt to the defaulting Party, stating the intention to apply this termination clause.
24.2. In the event of termination of the Order, for any reason whatsoever and without prejudice to any other rights and remedies available to either Party, the Client shall compensate Smartweld Center for all Services performed up to the date of termination.
24.3. Termination of the Order shall not affect the accrued rights and obligations of the Parties.
24.4. Where a breach is capable of remedy, the Party concerned shall in principle be given a reasonable opportunity to remedy it.
25. NON-SOLICITATION
25.1. During performance of the Services and for an additional period of twelve (12) months, the Client agrees, unless it has Smartweld Center’s prior written consent, not to make any offer of employment, directly or indirectly, or to employ any person who is or was an employee of Smartweld Center and who participated in performance of the Services.
25.2. If the Client fails to comply with the obligation in Article 25.1, it shall compensate Smartweld Center by paying damages equal to the reasonable and demonstrable loss.
25.3. This does not apply to general vacancies, non-targeted recruitment, unsolicited applications or demonstrably pre-existing relationships.
26. APPLICABLE LAW AND COMPETENT COURTS
26.1. Applicable law: The Agreement between Smartweld Center and the Client is governed by the law of the country in which Smartweld Center is registered, even if the Client is of foreign nationality or if the Services are performed wholly or partly abroad.
26.2. Any dispute relating to the interpretation or performance of this Agreement shall first be the subject of an attempt at amicable settlement between the Parties. If no amicable settlement is reached within one month after official notification by one of the Parties, all disputes concerning the validity, interpretation or performance of this Agreement shall first be submitted to mediation. The Parties shall jointly appoint a mediator. If the Parties are unable to appoint a mediator jointly, they shall apply to the Enterprise Court of GHENT, Ghent division, to appoint a mediator.
26.3. For all disputes arising out of or in connection with this Agreement, the courts of the registered office of Smartweld Center shall have exclusive jurisdiction, irrespective of the place of performance of the Services, the registered office of the Client, the nature of the proceedings, and irrespective of whether the proceedings concern interim relief, an incidental claim, multiple defendants or a claim for indemnity. Any jurisdiction clause contained in the Client’s documents shall not prevent application of this clause.
27. MISCELLANEOUS PROVISIONS
27.1. Assignment: Neither Party may assign its rights and obligations under the Agreement without the prior written consent of the other Party. Smartweld Center is, however, permitted to transfer the benefits of the Agreement or, where necessary, delegate performance of the Services to a subcontractor after notifying the Client.
27.2. Invalid provision: If a provision or part of a provision is declared invalid or void, the validity of the remaining provisions shall not be affected.
27.3. No waiver of rights: The fact that either Party does not exercise any of its rights under the Agreement shall not be construed as a waiver of that right, since such waiver may only take place by means of a written statement by the Party concerned communicated to the other Party.