These terms and conditions form an integral part of the agreement between The Sniffers NV (“TS”) and its client and prevail over the client’s own terms and conditions. It is only possible to deviate from these in common agreement between the parties and in writing.
TS and the client are hereinafter collectively called “the parties” and each individually “the party”.
1: THE APPLICABLE GENERAL TERMS AND CONDITIONS
All the agreements concluded by TS are governed by its special terms and conditions that supplement its offers, price quotations, and specifications, and by these general terms and conditions. These general terms and conditions prevail over all stipulations or indications mentioned on client-issued documents, and this applies regardless of the moment when these documents were addressed to TS, unless if TS has explicitly accepted them.
Unless otherwise stipulated, the term of validity of each offer is 30 calendar days, and this term starts from the date of offer.
The client needs to communicate its acceptance of the offer in writing to TS (this written acceptance of the offer is the so-called order). When TS accepts the order in writing (this written acceptance of the order is the so-called confirmation of the order), a contract is concluded and the parties are contractually bound by it. The order implies the acceptance of these terms and conditions.
3: OBLIGATION OF MEANS
TS will perform its assignment to its best knowledge and abilities, with the care that can be expected from every professional service provider in similar circumstances, following the rules of the trade and taking into account the laws, regulations, prescriptions, and technical norms that are valid at the time the contract is concluded.
4: THE PRICE
The agreed prices remain unchanged for a period of 3 months following the confirmation of the order, unless otherwise agreed upon between the parties. If the costs of the materials, equipment, salaries, and/or social security contributions, etc. have increased to a certain extent after this 3-month period, and insofar as TS is not liable for a delay in the performance of the agreement, the prices of TS can be adapted in accordance with the same ratio. The prices of TS are set out in Euros, unless otherwise agreed. Every increase in VAT, in new taxes, increase of costs or charges of a financial, administrative, or social nature that would be levied in the country of performance in between the moment of the order and of the order’s completion, are at the expense of the client.
The agreed prices always exclude VAT. Unless otherwise agreed upon, travel costs, transport costs, and insurance costs are not included in the prices. The prices will be adapted annually on the 1st of January according to the Belgian consumer price index (“index der consumptieprijzen”).
To guarantee that the client will pay TS, TS reserves the right to demand a guarantee that is issued by a guarantor, that is issued by a bank, or other kinds of guarantees that warrant the financial solvability of the client.
Confidential information is understood to cover all information in any possible form (orally, in writing, graphically, electronically,…), that has been exchanged between the parties in the framework of this agreement. The parties, their respective employees and/other possible other appointees must keep the confidential information they receive from the other party during the performance of this agreement a secret. In addition, the parties can only use this confidential information in the framework of this agreement. The parties may not disclose the confidential information to third parties without the prior written permission from the other party. Information will in any circumstances be considered confidential if this has been indicated as such by one of the parties. The obligation of confidentiality will remain in force for a period of 12 months after the end of this agreement, irrespective of the grounds for termination of the agreement. The following information is not considered to be confidential information:
- information obtained legally by a third party who is in no way bound by any confidentiality obligation or obligation of secrecy;
- information already known to the party before it was transferred to it in the framework of this agreement;
- information that the party itself has developed without committing a breach of this agreement;
- information available in the public domain without any interference or mistake made by the party that has received the information;
- information that must be made public in accordance with a judicial decision.
All confidential information that is communicated to the client either directly or indirectly remain the exclusive property of TS. If the contractual relationship between TS and the client comes to an end, the client guarantees that it will return to TS immediately, besides all the confidential information, all the materials and documentation that are the property of TS and that have come into the possession of the client during the contractual relationship.
The client will pay a lump sum compensation of EUR 5,000 to TS for every breach committed, without prejudice to TS’s right to demand additional compensation if the value of the damaged it suffered is higher than this lump sum.
However, the client agrees that TS may mention the orders it performs for the client as a reference. In this regard, TS may use drawings, pictures, and other illustration material as reference material on condition that it mentions the name of the client.
6: RENDERING AND PERFORMING OF THE SERVICES – ORDER CONFIRMATION
The services will be delivered in the way described in the offer and/or additional documents (i.e., contract, tender, procurement file,…) and according to the agreed price and conditions, and are binding only after the written confirmation of the order.
Any additions to, extensions of, or changes to the order must be transferred in writing and no later than 30 working days before the performance, and could give rise to a change in the starting date and the period of service performance. If these changes amount to more than 2% of the price of the assignment, the price setting can/will be reviewed.
The services will be delivered within a reasonable term and in mutual consultation with the client, taking into account the usual tolerance that is inherent in the nature of the industry or the manner of performance and after having received a deposit or pre-payment for the service performance, if this is agreed upon.
Any possible delays in the performance because of circumstances that are independent of the will of TS cannot give right to any compensation and or dissolution of the agreement. TS cannot be held liable for the non-performance of its contractual obligations if such non-performance is caused by an event independent of its will, and that it is reasonable to expect from TS that it would have taken this into account when it concluded the agreement. Every kind of event, independent of its will and which constitutes an insurmountable impediment to the normal performance of its obligations, or that forces it to suspend the performance of its obligations temporarily or definitely: will be considered an event of force majeure, amongst others accidents, war, natural disasters, strikes, governments decisions, etc.
Concerning the transport of the measuring instruments, measuring cameras,…: TS sets out the standard manner of sending the instruments, unless otherwise agreed. If the client wishes for a sending method that is different than the standard manner of TS, the client will bear any extra costs.
If the measuring instruments or other equipment that are necessary for the performance of the services and that must be stored at the place of the service performance, the client will foresee a lockable space that satisfies the conditions for storing these instruments and the client will be entirely liable for the care and safekeeping.
(Measuring) instruments used by the client under renting or borrowing formula’s, in other words, equipment that are not operated by TS employees during the service performance, will be calibrated at the expense of the renter or borrower and adjusted in the lab designated by TS.
If, during the performance of the services, the client uses the TS software, this software will be made available together with a license agreement and will remain the sole property of TS.
Neither TS nor the client will transfer their obligations and responsibilities unless there is a written consent to such transfer given by the other party.
TS may subcontract its rights and obligations fully or partly insofar that it notifies the client about such subcontracting. If TS cooperates with one or more subcontractors at the request of the client, TS will not be liable for the part that is performed by the subcontractor(s).
7: THE PLACE OF SERVICE PERFORMANCE
The services will be performed at the place indicated in the offer, unless otherwise agreed in writing. The costs of unforeseen relocations and relocations that are not known upfront to other offices, units, or company entities are at the expense of the client.
8: CANCELLATION, DISSOLUTION, TERMINATION OF THE AGREEMENT
Cancelling or dissolution of the order or assignment is only possible if it is requested in writing by the client no later than 5 working days after the order has been made and insofar that it is confirmed in writing by TS. If this occurs, any paid deposits will not be reimbursed, without prejudice to the possibility for TS to claim higher proven damages.
If the client does not fulfill its contractual obligations, TS reserves the right to either suspend its obligations or dissolve the agreement without judicial intervention, without prejudice to the right to claim an indemnity.
The agreements of TS are always concluded under the contractual dissolution condition should the client become bankrupt. In the event of manifest insolvency or force majeure, TS reserves the right to dissolve the agreement unilaterally and this without giving a prior notice of default.
9: PAYMENT OF THE INVOICE(S)
The assignments performed by TS are payable no later than 30 days from the date of invoice, unless otherwise stipulated in the offer, contract, or other signed document. If the invoice is not paid fully or partially by the due date, the sum due on the invoice will be increased by an interest of 12% per year automatically by law and without prior notice of default, as well as with a damages clause of 10% of the sum due, with a minimum of EUR 1,000, and other possible outstanding invoices will immediately become due.
After the termination of the performed services, the complaints arising from, as a result of, and that are directly related to the performance, must be sent to TS per registered letter no later than 30 days after the termination.
11: INSURANCE AND PERFORMANCE LIABILITY
TS may only be held liable for the direct damage during the period of service performance and may never be held liable for any consequential loss. Except for damages resulting from willful misconduct, TS’ total aggregate liability under this agreement shall be limited to 1.000 €. Moreover, TS has concluded a BA (burgerlijke aansprakelijkheid) policy covering bodily damage and material damage.
12: APPLICABLE LAW - JUDICIAL COMPETENCE - DIVISIBILITY
All the agreements are governed by Belgian law. Any disputes arising from this agreement are to be settled exclusively by the courts of Brussels. The eventual nullity of one or more of the clauses of the present conditions will not affect the validity of the other clauses of the present conditions, nor their enforceability.