GENERAL CONDITIONS

GENERAL PURCHASING CONDITONS SPICA

1. Agreement

1.1 Accepting the order implies the supplier’s agreement with the general purchasing conditions of NV Spica, with the exclusion of the supplier’s sales conditions, which will not apply. These conditions apply for both purchase contracts and for contracts for services to be performed. Any deviation, modification or addition to these conditions may only be invoked against NV Spica if NV Spica has expressed its agreement in writing.

1.2 Every order is placed by NV Spica in writing. The agreement comes into effect as soon as the order document submitted by NV Spica is accepted by the supplier without reservation and in writing. If the supplier commences performance of the contract after receipt and on the basis of the order form, and NV Spica accepts this, this implies the supplier’s agreement. The order form, together with all annexes included with these general purchasing conditions, specifications and/or drawings, constitutes the full agreement between the parties. Any amendment or addition to the agreement is only binding in the event of explicit and written agreement on the part of both parties.

1.3 In the event of any contradictions or incompatibility the more specific provisions always take precedence over general provisions. Thus special conditions take precedence over the general conditions and technical descriptions take precedence, in their turn, over special conditions.

2. Subcontracting - transfer of the agreement

2.1 Except with the prior explicit and written permission of NV Spica, the supplier is not permitted to transfer this agreement to a third party, to have the contract performed, wholly or in part, by a third party and/or to share its performance as part of a partnership with a third party.

2.2 In the event of written permission to subcontract, the supplier remains liable at all times for the goods and/or services delivered by the subcontractor. The supplier is also responsible for supervising and checking his subcontractors, which must be carried out in accordance with the internal guidelines and procedures of NV Spica, if they are on the premises of NV Spica.

2.3 In the event of transfer of the agreement to a third party, the supplier remains jointly and severally liable with respect to NV Spica.

3. Description of the goods to be delivered - inspection

3.1 The supplier acknowledges that he has received all the necessary information, specifications, guidelines and instructions to allow the goods to be delivered in accordance with the law, the agreement, the applicable standards and good manufacturing practices. The supplier confirms that he is aware that the goods delivered will constitute a crucial component of an end-product to be manufactured, and that possible damage resulting from a defect in the goods delivered is much greater than the value of the goods delivered.

3.2 The goods delivered and/or services must be in strict compliance with the specifications of the order form and its annexes. The supplier guarantees that the raw materials and the processes used comply with all applicable standards, including those of NV Spica. The goods delivered and/or services must be free, in their entirety, as well as all their components, of any defect in design, material and/or work, and the working and the use thereof must be continuous and “error-free”.

3.3 The supplier will organize an exit inspection in such a way that an entry inspection by NV Spica is, in principle, unnecessary. The supplier will provide proof of this if asked to do so by NV Spica.

3.4 NV Spica has the right, after prior notification, to monitor manufacture in the workshops of the supplier and/or third parties and to have the quality of the materials used and the items made inspected and, if required, tested. The costs thereby incurred may be charged to the supplier. NV Spica may also, at any moment, order the stoppage of work that does not comply with the requirements or order it to be redone. It many also refuse all materials that are not of the stipulated quality. These measures will take place without prejudice to the tests that must be carried out on the finished goods and do not limit the responsibility of the supplier.

4. Raw materials and/or components supplied by NV Spica

4.1 The raw materials and/or components that NV Spica supplies to the supplier remain the property of NV Spica, even in the event of processing with the supplier’s own raw materials, components or goods.

4.2 Said raw materials and/or components of NV Spica are supplied exclusively at the supplier’s risk. The supplier is therefore liable for any damage occasioned to said raw materials and/or components and will take out sufficient insurance for this purpose.

4.3 The supplier may not use more raw materials and/or components than the quantities necessary to fulfil the order of NV Spica. Any stocks left over will remain with the supplier in accordance with articles 4.1 and 4.2 until NV Spica asks for their return.

4.4 The responsibility for the working and/or processing of raw materials and/or components lies exclusively with the supplier. The supplier will report any damage to NV Spica immediately and will keep the damaged components.

5. Delivery and acceptance

5.1 All goods are delivered DDP in the warehouses of NV Spica or at the place of delivery stipulated in the special conditions. The goods are transported at the supplier’s risk, even if it has been agreed that NV Spica will provide transport. Delivery will be performed in accordance with the packaging instructions provided by NV Spica.

5.2 Goods are only deemed to have been delivered after everything that is permanently intended for their use has been supplied, including: (i) technical files; (ii) users instructions in the agreed languages; (iii) an unconditional test certificate from a recognized testing body stating that the goods comply with the applicable EU and Belgian CE-standards; (iv) certificates of origin for the materials or parts; (v) guarantee certificates; and (iv) correct dispatch notes, stating the order number and the item references used by NV Spica..

5.3 The supplier will immediately notify NV Spica, in writing, as soon as he is aware of a possible delay with respect to the agreed delivery lead time or date. If the supplier fails to respect the agreed delivery lead time or date, for whatever reason, he will be required to pay, by the operation of the law and without notification of default, a standard compensation that, taking account of the potential damage, will be 2% of the total price of the order, per week’s delay, up to and including the actual delivery date, with a minimum charge of € 250 and a maximum charge of 10%, without prejudice to NV Spica’s right to prove greater damage.

5.4 The checking of goods with regard to conformity and visible defects will be done by removing the packaging at the moment of processing. Any complaints will be communicated to the supplier in writing within 14 working days after the discovery of the defect. Acceptance cannot be tacitly assumed and is not implicit, inter alia, as a result of the receipt of the invoice and/or payment.

5.5 Refused goods or excess quantities delivered must be taken back and transported within five working days, at the supplier’s expense. If not, they will be sent back by NV Spica at the supplier’s expense and according to NV Spica’s choice of transport. Until such time they will remain in the warehouses of NV Spica, at the supplier’s risk and expense. The supplier will, at the discretion of NV Spica, either take the goods back and refund the price or apply a price reduction or replace the refused goods, without prejudice to NV Spica’s right to demand compensation for all damages resulting from the supplier’s error. Within 24 hours after receiving a return order the supplier must let NV Spica know which of the possible solutions he has chosen. Under no circumstance may the replacement of refused or defective goods result in an extension of the delivery lead time. 

6. Ownership and risk

The rights of ownership with respect to the goods and the risk of damage or loss with respect to the goods is transferred to NV Spica at the moment that the goods are delivered to NV Spica in accordance with article 4 of these conditions. The supplier guarantees that the goods are not subject to any retention of ownership in favour of a third party.   

7. Price and payment

7.1 Unless agreed between the parties to the contrary, explicitly and in writing the prices agreed between NV Spica and the supplier include all costs (inter alia for transport, packaging, certificates and declarations, etc.) as well as taxes and/or charges levied up to the moment at which the goods are delivered. Prices are exclusive of VAT. The prices are fixed and not subject to fluctuations, for whatever reason, even in the case of fortuitous events or force majeure. All price adjustment clauses are deemed not to exist, except in the event of a special agreement to the contrary.

7.2 The supplier’s invoices will only be presented after delivery. Belgian invoices are to be submitted in duplicate and international invoices in five copies, always on a “shipment by shipment” basis. The invoices will be based on the actual quantities delivered and on the unit prices agreed in the order form. The invoices will be paid in accordance with the payment methods agreed in the special conditions.

7.3 In addition to the legally required content, every invoice will also include: (i) the correct order form number; (ii) the correct company name, legal form and address of NV Spica; and (iii) NV Spica’s correct VAT number, as stated on the order form. Invoices that do not meet the aforementioned conditions, will remain unpaid, without any addition of interest, and a copy will be returned to the supplier for correction by registered post.

8. Hidden defects

8.1 The supplier is responsible for all hidden defects that the goods delivered may contain and of which NV Spica has notified him in writing within 2 months after the defect was discovered. The supplier is responsible for the immediate and free repair and/or replacement of the defective goods, as well as for the compensation of all damage suffered by NV Spica and/or by third parties.

8.2 NV Spica enjoys a period of one year after notification in which to submit a claim on the grounds of hidden defects. Negotiations between the parties and any expert study conducted will have the effect of suspending this period.

9. Guarantee

The supplier will provide a full guarantee for two calendar years to be calculated from the date of delivery for all defects which may emerge, irrespective of whether these are the result of visible or hidden defects, except in the event of a proven error on the part of NV Spica. The supplier is responsible for the immediate and free repair and/or replacement of the defective goods. He will indemnify NV Spica and/or third parties for any damage suffered.

10. Procedures – compensation and unit of calculation

10.1 If the supplier remains in default regarding the performance of the agreement, NV Spica, subject to a prior notification of default and without prejudice to its right to compensation for damages as set out above, may cancel or suspend current orders free of charge and may also suspend all payments and performances, including those with regard to other agreements, and without prior judicial intervention, by means of a notification to the supplier to this effect by registered post.

10.2 NV Spica may debit the sum of the standard compensations for damages, as well as the amount for damages, costs or expenses resulting from the application of ex-officio measures or which may arise from these, from the amounts due and payable to the supplier for whatever reason.

10.3 The supplier accepts the compensation of the aforementioned amounts with his outstanding invoices relating to this or any other contract. This provision also applies if the bankruptcy, suspension of payments or the liquidation of the supplier leads to the cessation of deliveries.

10.4 If objective elements (such as contested bills of exchange, seizure orders, liquidation, etc.) indicate liquidity problems on the part of the supplier, NV Spica is entitled to suspend the performance of its obligations. NV Spica is also entitled to suspend its obligations, if objective elements (such as claims on guarantees, rejection of materials used, negative test results, etc.) indicate quality problems with the goods delivered.

10.5 If the supplier remains in default with respect to the observance of any of his obligations arising out of the agreement and if there is no favourable response to a notification of default sent by registered post during a period of eight calendar days, NV Spica is entitled to dissolve the agreement without prior judicial intervention with fault lying with supplier, subject to notification by registered post to this effect. In that case the supplier, by the operation of the law, will be required to pay compensation for damages for which the standard and contractual minimum is set at 10% of the agreed price, any further damage is to be proved by NV Spica.

11. Liability

The supplier will be liable for, and will hold NV Spica, its directors, employees, agents and any third party (the “victims of damage”) harmless and indemnify them, against any claim, suit, summons or procedure, liability, damage, loss, costs and/or expenses of any nature whatsoever, brought against or brought by the victims of damage relating to a failure on the part of the supplier or any of his subcontractors to comply with his contractual obligations, or due to a failure by the supplier or any of his subcontractors to comply with the applicable laws and regulations.

12. Industrial secrets – Intellectual property rights

12.1. All data, information, plans, documents etc., attached by NV Spica to the order form or handed over in any other way to the supplier, are the exclusive property of NV Spica and may only be used by the supplier within the context of the delivery of goods and/or services in relation to the order.

12.2 All the aforementioned data, information, plans, documents etc. of NV Spica are confidential and may not be made public in any form and/or communicated to third parties, except if NV Spica has given its prior, explicit and written permission. In the event of any infraction, the supplier will be required to pay a standard compensation for damages of € 5,000, without prejudice to NV Spica’s right to prove greater damages and/or to demand the cessation of the infraction in summary proceedings. The supplier is also required to stipulate the secrecy obligations with respect to his employees and subcontractors in writing.

12.3. The supplier is responsible for ensuring that the goods delivered do not breach the intellectual property rights of third parties. The supplier will hold NV Spica harmless with regard to all claims from third parties and for all damages which may result from them due to alleged breaches of copyright, trade secrets, patent rights, trademark rights, industrial design rights or any other intellectual property right.

13. Applicable law - competent law court

13.1 Any dispute comes under the competency of the law courts of the judicial district of Kortrijk. This competency provision also applies in the event of extreme urgency, (e.g. summary proceedings).

13.2 Belgian law applies. The provisions of the Vienna Trade Convention or any other treaty are explicitly excluded.

GENERAL SALES CONDITIONS SPICA

1. Agreement

1.1 Unless agreed otherwise in writing, every offer and every agreement is governed by these conditions, which constitute an integral part thereof and which, by the operation of the law, take precedence over the purchasing conditions of the customer. Any deviation, modification or addition to these conditions may only be invoked against NV Spica, if NV Spica has expressed its agreement therewith in writing.

1.2 An offer is valid for 14 days. The total price is exclusive of VAT. The agreement comes into effect at the moment that NV Spica receives written acceptance of the offer within the stated time period.

1.3 The customer will guarantee that the information, specifications and guidelines he supplies to NV Spica are accurate, correct and comprehensive.

2. Delivery and delivery times

2.1 Goods are delivered ex works. They are always transported at the customer’s risk, even if it is agreed that NV Spica will provide transport.

2.2 The customer will guarantee that the delivery and/or installation address complies with all the conditions necessary so that the delivery and/or installation can be carried out in accordance with the law, the agreement and good manufacturing practices. All costs and damage caused, in part, by this not being the case will be borne exclusively by the customer.

2.3 The delivery time proposed by NV Spica is only an indication. Any delay may not, under any circumstances, be adduced as grounds for dissolving the agreement. In the event of a manifestly unreasonable exceeding of the delivery time, which is also exclusively attributable to NV Spica, the customer may claim compensation if he proves the damage suffered. In that event, the liability of NV Spica is, in any case, limited to the direct and foreseeable damage and said compensation will be to a maximum value of 5 % of the price.

2.4 Any exceedances of the payment period for advance payments will be added to the delivery time.

3. Ownership and risk

3.1 In all circumstances the ownership of the goods is only transferred to the customer after the price has been paid in full. The bankruptcy of the customer does not affect NV Spica’ right to demand the return of all goods that have already been delivered.

3.2 The responsibility and risk with respect to the goods is transferred to the customer when the agreement comes into effect.

4. Force majeure

4.1 In the event of “extraneous cause” (article 1147 of the Belgian Civil Code), even when this does not result in the permanent and/or complete impossibility of performance, the parties are entitled, by the operation of the law, to suspend their obligations or to terminate the agreement unilaterally, by notifying the other party by registered letter and without any obligation to pay compensation.

4.2 The following eventualities, inter alia, are regarded as instances of “extraneous cause”: fire, explosion, strike, civil unrest, civil war or international war, invasion, refusal by the authorities to issue import or export licences or the cancellation thereof, the impossibility of obtaining goods and/or raw materials and/or parts due to a situation of force majeure at the production site or an unforeseen event at a supplier of goods or services, etc. or due to any other similar cause that is reasonably beyond the control of either party.

5. Price

5.1 The price is stated in the agreement and will be subject, by the operation of the law, to the addition of all taxes (incl. VAT) and fees imposed or raised by any authority or government, as they apply on the day of the delivery.

5.2 NV Spica may, if it suffers a significant loss, exercise its right to ask the customer for an adjustment to the price due to circumstances which it could not reasonably have foreseen when the agreement came come into effect and the consequences of which NV Spica was not able to remedy, even though it had done everything necessary to this end. The following, inter alia, are considered to be circumstances of this nature: economic circumstances such as increases in ordinary or extraordinary costs, of whatever nature. A loss is deemed to be significant once the sum concerned is equal to 2.5 % or more of the price. In the absence of agreement between the parties concerning this price adjustment, NV Spica is entitled, by the operation of the law, to suspend its obligations or to unilaterally terminate the agreement in accordance with article 4.1. by means of notification by registered letter.

5.3 The additional works are calculated by direct labour according to the unit prices unless these are of a special nature and require more work or costs, or if price increases in wages or materials have occurred in the meantime.

6. Invoicing – payment

6.1 All invoices are payable in cash within 8 days at the registered office of NV SPICA.

6.2 Objections to invoices must be submitted by registered letter within 8 days of the invoice date.

6.3 In the event of failure to pay on time the customer will be required, by the operation of the law and without prior notification, to pay late payment interest at a rate of 12 % per annum. In the event of complete or partial non-payment on the payment due date, and after notification by registered letter, the amount owed will be increased by 12 %, by the operation of the law, and with a minimum sum of 250 euros, as a fixed compensation fee for extra-legal costs. This compensation will be subject the same contractual interest, at 12 % per annum, from the date of notification by registered letter, by the operation of the law.

6.4 The continued failure to pay one invoice will result, after notification by registered letter, in the expiry of any postponement of payment that may have been granted with respect to other deliveries and will result in all outstanding invoices becoming immediately payable. NV Spica is further entitled to suspend the fulfilment of other orders.

7. Conformity

7.1 The customer will check the delivered goods and, where applicable, the installed goods at the moment of delivery or installation. Any visible defects and/or non-conformity with the specifications on the date of delivery or installation must be made known to NV Spica within 8 days by registered letter. If this does not occur, the goods will be assumed to have been accepted. 

7.2 Claims relating to alleged visible defects or non-conformity may not be invoked by the customer as grounds for postponing or suspending his obligations to pay.

8. Hidden defects

8.1 NV Spica guarantees that the goods will be free of hidden defects in materials and work, at the moment of delivery.

8.2 In any case, the customer forfeits the right to invoke a hidden defect, if he has not made this known to NV Spica within a maximum period of one year after the date on which the goods were delivered to him. The customer’s right to claim on grounds of a hidden defect is also forfeited if he fails to notify NV Spica within 14 days after discovering the defect including details of the precise nature of what has been discovered.

8.3 The customer must provide proof that, at least, the seeds of the defect were present at the moment of delivery.

8.4 The customer may not avail himself of claims relating to alleged hidden defects as grounds for postponing or suspending his obligations with regard to payment.

8.5 If, in accordance with the conditions stated above, it is found that there is indeed a hidden defect, NV Spica will, at the request of the customer, and at its own discretion, either repair the goods or parts concerned, or replace the goods or parts concerned. Repair or replacement must take place within a reasonable period of time and without serious inconvenience to the customer, taking account of the nature of the goods and the use that the customer wishes to make thereof. Only the direct costs of materials and work incurred in order to bring the goods into conformity will be paid by NV Spica. Repair or replacement excludes any other claim. The customer may not demand additional compensation for direct or indirect damage that he may have suffered.

8.6 The customer may only additionally request an appropriate price reduction or the dissolving of the agreement, if (i) repair or replacement is impossible or would incur excessive costs for NV Spica, or (ii) NV Spica fails to provide redress within a reasonable period of time. Dissolution of the agreement may not be demanded, under any circumstances, if the defect is of minor importance.

9. Limitation of liability

9.1 Without prejudice to the provisions of article 2.3, the responsibility of NV Spica with respect to the customer, for whatever reason, is, in all respects, limited to the direct and foreseeable damage to the delivery itself, excluding any damage relating to use or operation, and will be of a value no greater than the amounts invoiced by NV Spica for the delivery or for that part of the delivery to which the complaint relates, with the exclusion, inter alia, of the costs of removal or replacement. The customer will hold NV Spica harmless with respect to all claims by third parties with regard to the goods delivered, that are of such a nature that the maximum obligation of NV Spica would be exceeded. 

9.2 Any claim on the part of the customer with respect to NV Spica is invalid if the goods:

(i) were not always transported and stored in the original packaging in the circumstances as indicated by NV Spica (inter alia in a sheltered and safe location, minimum temperature, maximum humidity) or, in the absence thereof, at least in circumstances that are generally accepted for such goods;

(ii) were not assembled, processed or used in accordance with the instructions of NV Spica, or, in the absence thereof, were not always the subject of a normal assembly, processing or use with the same care and precaution as is generally accepted for such goods;

(iii) were not maintained according to the instructions of NV Spica, or, in the absence thereof, at least not in accordance with generally accepted practice for such goods;

(iv) were connected to or used in combination with hardware and/or software that is not compatible with the goods in question;

(v) were modified, repaired or sold on by the customer or by third parties.

10. Unilateral termination of the agreement - Dissolution

10.1 If the agreement is cancelled by the customer, he will be liable to pay a compensation of a value equal to the services already performed and the materials already purchased plus compensation, the minimum value of which is set at a fixed rate of 25 % – increased to 65 % in the case of customized work – of the price, excl. VAT, without prejudice to NV Spica’s right to present evidence of greater damage.

10.2 The customer is bound to hold NV Spica harmless against all claims of sub-contractors, suppliers or third parties whose services NV Spica has called upon.

10.3 If the customer refuses to accept delivery or delivery is made impossible, NV Spica may dissolve the agreement, by the operation of the law, at the customer’s expense, by means of notification by registered letter to that effect. If partial delivery has already been made when the customer refuses to accept further delivery or makes further delivery impossible, NV Spica may opt, subject to notification by registered letter to that effect, to invoice the part of the delivery that has been fulfilled and to dissolve the agreement, by the operation of the law, at the customer’s expense, with respect to the, as yet, unfulfilled part. NV Spica is entitled, in any case, compensation as set out in article 10.1.

10.4 If the customer fails to comply or comply fully with one of his obligations, NV Spica may dissolve the agreement by the operation of the law, at the customer’s expense, by means of notification by registered letter to that effect, without prejudice to NV Spica’s right to compensation as set out in article 10.1.

10.5 NV Spica reserves the right to dissolve the agreement, by the operation of the law and without prior notification, in the event of bankruptcy, insolvency and in the event of any change of whatever nature to the customer’s legal situation, by means of notification by registered letter to that effect.

11. Intellectual property rights

11.1 The customer guarantees that the intellectual property rights of third parties will not be infringed in the performance of the agreement.

11.2 The customer will hold NV Spica harmless with respect to all claims by third parties and for any damages that might result therefrom, inter alia, on grounds of alleged breaches of copyright, trade secrets, patent rights, trademark rights, industrial design rights or any other intellectual property right. The customer undertakes to pay all costs caused by said breaches, including court costs and costs and fees for technical or legal assistance.

12. Transfer

Neither party may transfer the obligations that are the subject of this agreement, wholly or in part, without the prior written permission of the other party.

13. Applicable law and competent law court

13.1 The agreement is subject to Belgian law.

13.2 Any dispute, including in the event of extreme urgency, (e.g. summary proceedings), comes under the competency of the law courts of the judicial district of Kortrijk.

Algemene voorwaarden – conditions générales – general conditions – allgemeinen geschäftsbedingungen: www.spica.be

“Une traduction française des conditions générales peut être communiquée aux clients gratuitement à simple demande. Le fait que cette traduction ne se trouve pas sur ce document ne peut pas être invoqué pour prétendre que ces conditions n’étaient pas connues ou acceptées.”

“An English translation of our general conditions can be forwarded to our clients free upon request. The fact that this translation does not appear on this document cannot be invoked to pretend that these conditions were not known nor accepted.”