GENERAL TERMS AND CONDITIONS MAINTENANCE PARTNERS BELGIUM NV
These are the Terms and Conditions applicable to each and every offer or quotation issued by Maintenance Partners Belgium NV (hereafter referred to as ‘Maintenance Partners’) to which they are annexed. They are fully applicable to all supplies and services unless a specific and expressly written exemption has been agreed upon between Maintenance Partners and the Contractor. No reference to a Contractor’s own purchase and contracting general or specific terms and conditions is accepted by Maintenance Partners or could create any obligation on behalf of it.
TABLE OF CONTENTS :
1. DEFINITIONS. 2
2. CONSTRUCTION.. 2
3. OFFER AND CONSENT. 3
4. SPECIFICATIONS AND QUOTATIONS. 3
5. DELIVERY AND TRANSPORT. 3
6. TERMS OF DELIVERY.. 3
7. RETENTION RIGHT. 4
8. COMPLAINTS. 4
9. LIABILITIES. 4
10. GUARANTEE PERIOD.. 5
11. PAYMENT. 5
12. ANNULMENT OF THE AGREEMENT. 5
13. STANDSTILL CLAUSE. 6
14. IMMUNITY.. 6
15. SUCCESSORS AND ASSIGNS. 6
16. PROVISIONS SEVERABLE. 6
17. INTELLECTUAL PROPERTY.. 6
18. ENTIRE AGREEMENT. 7
19. SPECIAL TERMS AND CONDITIONS FOR HIGH SPEED BALANCING.. 7
In these Terms and Conditions words and expressions shall (unless otherwise expressly defined herein) bear the meaning given to them in the Offer, Contract or Quotation, hereafter jointly referred to as “Offer”, and:
“Acceptance” means the prospective client’s acceptance of the Offer issued by Maintenance Partners;
“Assumed Obligations” means all of the contractor’s obligations under or in respect of the Offer;
“Business or Working Day” means a day on which banks are generally open for business in the main financial centres appropriate for the transaction described in the Offer
“Contractor” means any party, interested in the services of Maintenance Partners upon whose interest or specific request, Maintenance Partners has issued the Offer and who will be a Party with rights and obligations as of the acceptance of the Offer, turning it into a full contract or agreement;
“Credit” means each Acceptance, Credit Support, Letter of Credit, Letter of Credit Obligation, Loan and any other form of credit or facility under the Offer;
“Credit Support” means a guarantee, indemnity, bond or other similar assurance against financial loss (other than a Letter of Credit) entered into or issued by the Contractor or any other person in connection with the offer under or in respect of which Maintenance Partners has no liability whatsoever;
“Guarantor” means any person who has given a guarantee, indemnity, security interest or other assurance against loss to Maintenance Partners in respect of any obligations of any Contractor to Maintenance Partners in relation to the Offer;
“Issuing Bank” means, in the case of a Letter of Credit Obligation, the bank which issued the letter of credit the subject of that Letter of Credit Obligation;
“Letter of Credit” means a standby letter of credit or a documentary letter of credit issued upon request of the Contractor or by another person in connection with the Offer under or in respect of which Maintenance Partners has no liability whatsoever;
“Obligor” means any Borrower or Guarantor or, in the case of a Letter of Credit Obligation, the Issuing Bank;
“Party” means a party to the contract agreement, originating out of the acceptance by the Contractor of the offer issued by Maintenance Partners;
“Product” means any object and services described in the Offer, including but not limited to repairs, maintenance, advice, inspections, delivery, etc…
“Receiving Account” means, the account of Maintenance Partners designated as its Receiving Account as specified in the Offer;
“Service” means the total of activities undertaken by Maintenance Partners upon the acceptance by the Contractor of the Offer and the validity of the originated contract agreement.
In the Offer and these Terms and Conditions, unless the contrary intention appears, a reference to:
- a Clause or Exhibit is a reference to a clause of or exhibit to these Terms and Conditions;
- the Offer is a reference to the detailed description of the services contained in the scope of activities to be executed by Maintenance Partners, their indicative timing schedule and pricing;
- a person or legal entity includes its successors and assigns.
The headings in these Terms and Conditions are for convenience only and are to be ignored in construing them.
If there is any inconsistency between these Terms and Conditions and the Offer, the Offer shall prevail.
References to any document shall be references to the same as amended, varied, supplemented, replaced and restated in any manner from time to time.
Third Party Rights: a person who is not a Party has no rights under the Contracts to enforce or to enjoy the benefit of any term of the Assignment.
3. OFFER AND CONSENT
The Offer is conditional upon the obtaining of all necessary consents or other documents required, to allow such Offer to be accepted and turned into a binding agreement. As such, unless otherwise specifically and expressly agreed upon in writing, all quotations and indications made are free of engagement and without any obligations on behalf of Maintenance Partners.
4. SPECIFICATIONS AND QUOTATIONS
4.1. All estimates and quotations made for repair, refurbishing or any other service rendered by Maintenance Partners only apply in case no supplementary works, other than the ones described in the Offer, need to be executed. If it becomes apparent that supplementary works are absolutely a necessity, for instance, but not limited to such circumstances, after a full disassembly, testing or even a partial repair, Maintenance Partners has the right to execute such works and charge them supplementary at the best possible market rates and market conditions.
4.2. Due reserves are made for the testing phase whereby it may be the case that, due to specific conditions and the capacity of the normal testing equipment available in the workshops of Maintenance Partners, certain machines can only adequately undergo final testing on site. If such is the case, and the offered services prove to have achieved the desired results according the testing equipment available to Maintenance Partners in its workshops, having created to the highest extend possible a simulations of the corporate circumstances on site, but it turns out to be inadequate on site, any supplementary works will not fall under the clause of guarantee and will also be charged at the best possible market rates and conditions.
4.3. Any interested Contractor that has asked for an indicative Offer from Maintenance Partners guarantees he has provided the company in writing with all available data that might be useful in order to achieve the optimal repair of the machinery. Should there be any deficiencies in the repair which is due to insufficient data supply that was or should have been available to the Contractor, any resulting costs will be charged to the Contractor without any possibility of recourse against Maintenance Partners.
4.4. In the event that the services cannot be executed in one of the workshops of Maintenance Partners, all costs resulting thereof will be charged to the Contractor, even if they are not included in the Offer.
5. DELIVERY AND TRANSPORT
5.1. Delivery and transport are the full liability of the Contractor unless specifically and expressly agreed upon in writing that Maintenance Partners will assume this obligation. Any risk of damages of the concerned machinery will therefore be for the account of the Contractor until the moment Maintenance Partners received such machinery in its workshop and accepted and signed for receipt of the machinery. In case, no damages are noticed with the bare eye but become apparent upon unpacking or disassembly of the machinery and are clearly caused by and/or during the transport, Maintenance Partners will immediately advise the Contractor thereof and will give an indication of the supplementary cost for repair of such damages, if possible, without bearing any liability resulting of such event.
5.2. In case the contractor prefers that transport is done by Maintenance Partners, the transport, packing and insurance costs will be integrally charged to the Contractor regardless whether their pricing is included in the Offer or not. In case responsible for the transport, Maintenance Partners will always insure such transport. Any request by a Contractor for dropping the insurance from a cost point of view, will be deemed to be null and void.
6. TERMS OF DELIVERY
Any terms of delivery included in the Offer are merely indicative and do not form a binding condition. Unless otherwise specifically and expressly agreed upon in writing, the Contractor will have no right whatsoever to claim damages, interests, make set offs or invoke contract nullifications in case of non compliance with the indicated terms of delivery, neither will it have an effect on any payment obligation of the Contractor.
7. RETENTION RIGHT
Maintenance Partners will have a retention right on any goods it has in its possession which appear to be belonging to the Contractor in the event of defaulting on payment obligations. The Contractor will only be restored to its full property rights when the invoices are fully paid, including any accrued interests, collection charges, taxes and reimbursements.
8.1. Any complaints regarding the delivery, repair or other works must be registered in writing within 8 days after delivery or completion on site of the works. Any complaints concerning the invoices must be registered in writing within 8 days after the invoice date. If the complaint is not registered within the specified time, the deliveries, repairs, other works and invoices are considered as being accepted.
8.2. If the products of Maintenance Partners are incorporated in machinery that was delivered by third parties, the Contractor is obliged to test the product before it is incorporated and has an obligation to inform Maintenance Partners in writing of the results of such tests within 8 days after the delivery of the products. If not, both the liabilities and the guarantee stipulated in clauses 9 and 10 shall lapse.
8.3. Deliveries, repair and other works which are acknowledged as inadequate by Maintenance Partners may only be repaired or replaced by the company, the Contractor not being allowed to engage any third party without the express written consent of Maintenance Partners, nor to claim any compensation. In case of non respect of this clause, Maintenance Partners will have the right to consider to be released of all obligations, all outstanding invoices from the company will become immediately due and the right is reserved to issue a final invoice. No claim can be laid to reimbursements for indirect damages or costs, such as but not limited to : transport costs, harbour dues, and “off-hire” for ships, income deprivations which are due to interruption of work or production losses, consequential damages, etc…. Invoices of this nature by the Contractor or any third party cannot be recovered from us and are automatically to be considered as protested by Maintenance Partners.
8.4. Any complaints or judicial action in respect of hidden effects in the delivered products or services rendered, have to be registered in writing or to be instituted within six months after delivery or completion. If this is not the case, the product or service will reach the status of final acceptance to the satisfaction of the Contractor.
9.1 Except as otherwise provided in the Offer, Maintenance Partners shall not be liable for any direct, indirect, special, collateral or consequential damages arising out of the actions of Maintenance Partners under the contract. However, Maintenance Partners can be held liable for all named damages where caused by proven gross negligence or wilful misconduct of Maintenance Partners or its employees, with the exclusion of an appointed person or entity or execution agent unless otherwise specifically agreed upon in writing.
9.2 In the case of gross negligence, the liability of Maintenance Partners resulting from such negligence will not, in any event, exceed the maximum amount paid as contract price by the Contractor under the terms of the Offer.
9.3. Maintenance Partners cannot be held liable for damage of any kind, or on whatever basis, in respect of :
- Products other than those repaired or delivered by us;
- Products repaired or delivered by us, but to which others have carried out changes, modifications or repair without the prior written consent of Maintenance Partners;
9.4 Consequential damage: whether resulting from breach of contract, guarantee, injustice or otherwise, the customer shall not be entitled to any claims against Maintenance Partners as a result of any incident or damages, including but not limited to loss of profit, loss of product, loss of use, waiting time expenses or loss of interest.
9.5 No rework or claims are applicable on activities performed against hourly rates.
10. GUARANTEE PERIOD
The guarantee period for a revised or repaired piece of machinery is six months after delivery date on the condition that the machine was completely assembled by Maintenance Partners and is functioning under normal operating circumstances and under professional supervision. For portable machinery, the guarantee period is three months after delivery. When a piece of machinery is used for more than eight hours a day, the guarantee period is halved. On parts which were overhauled or repaired by the Contractor, i.e. which have not been renewed, there can be no guarantee by Maintenance Partners of any kind.
10.2. Sales of new machinery and spare parts of Maintenance Partners
The guarantee period for newly sold machines/spare parts is 12 months after the date of delivery on the condition that the machine is functioning under normal operating conditions and under professional supervision. Should a machine be used for more than eight hours a day, the guarantee period is halved.
10.3. Sales of other machinery
Products which were not fabricated by Maintenance Partners are sold to the Contractor without any guarantee, unless otherwise expressly agreed upon in writing.
10.4. Sales of second hand machinery
Second hand products are bought by the Contractor cognizant of their state, including all possible defects (possibly due to their age or grade of intensive use). No guarantee is applicable on such products.
11.1. Unless otherwise specifically agreed, all open account invoices are payable in cash or by direct wire to the company account of Maintenance Partners within 30 days after the invoice date and without any deduction of shortage. The Contractor explicitly waves hereby any right of set off without the prior express consent in writing of Maintenance Partners.
11.2. In case of non payment on the due date, debt interest will accrue ipso jure on the owed amount, without any necessity for payment reminders, at the interest rate of Libor +4% and a minimum of 10% annually and without this clause suspending the immediate demand of the claim for payment. In case the non payment of a due invoice exceeds 8 business days, the principal amount of the invoice will increase with 15% to cover the collection costs of Maintenance Partners and as a retraction of any granted discount in the negotiation phase.
11.3. Upon first demand of Maintenance Partners, the Contractor will provide adequate financial guarantees, such as but not limited to Letters of Credit, Bank guarantees, Bills, etc…
12. ANNULMENT OF THE AGREEMENT
12.1. Both parties can invoke the automatic and ipso jure annulment of the agreement without any necessity for a judicial intervention in case of bankruptcy of the other contracting party. In such case, all clauses and stipulations can become null and void if desired so by the invoking party.
12.2. Maintenance Partners will have the right to end the contract immediately, with preservation of all rights arisen under the contract in the meantime, in case of:
a. Goods and/or properties of the Contractor are seized by a third party, regardless whether it concerns the products for which the intervention of Maintenance Partners is asked or any other;
b. The Contractor defaults on his obligations under this contract, included but not limited to the payment obligations, confidentiality obligations, the standstill clause, patent and intellectual property infraction, etc…
c. A force majeure or act of God, included but not limited to civil unrest in the country the Contractor is located in; war, natural disasters in the approximate neighbourhood of the site, fires, etc…
12.3. If, on the basis of the Agreement, Maintenance Partners has already started the production of the goods or started rendering the services required, the Contractor will compensate Maintenance Partners for all losses, including loss of profit, and all costs and damages consequentially arising out of this situation in case it concerns events described under 12.2 a and b. In the event of 12.2 c, the Contractor will compensate Maintenance Partners for the works affected up and till the moment the event occurred and for which Maintenance Partners has issued an invoice, including the end invoice.
12.4. If Maintenance Partners has not yet started the production of goods or started rendering the services required, the Contractor will compensate Maintenance Partners under all circumstances by paying 20% of the contracting price described in the Offer.
12.5 In case of force majeure, and in case Maintenance Partners abstains from its right to end the agreement, any accrued costs due to the event of force majeure, included but not limited to increased security cost, increased travelling cost, involvement of third parties, etc… can and will be charged extra to the Contractor.
13. STANDSTILL CLAUSE
The offer issued by Maintenance Partners is established on the market conditions and government regulations, such as but not limited to custom regulations, import/export regulations, permit procedures, applicable at that specific moment. For as much as the Contractor has any influence on these circumstances, it will abstain from influencing the conditions to the detriment of Maintenance Partners. If not, or if the Contractor has no influence on these circumstances and conditions, Maintenance Partners will have the right to inform the Contractor thereof and change the settings of the Offer made accordingly.
To the extent that a Contractor enjoys sovereign and/or diplomatic immunity, such Contractor irrevocably and unconditionally expressly waives all such immunity, including, but not limited to, immunity from jurisdiction of any court of law, arrest or attachment of any property, by giving his consent to the Offer issued by Maintenance Partners.
15. SUCCESSORS AND ASSIGNS
The obligations undertaken by a Contractor in these terms and conditions, shall also be binding upon the respective successors, guarantors and assigns. No Contractor can assign or delegate any of its rights and obligations hereunder without the prior written consent of Maintenance Partners, such consent not to be unreasonably withheld.
16. PROVISIONS SEVERABLE
If any of the provisions contained in these terms and conditions is held to be invalid or unenforceable, such determination shall not invalidate any other provision of these terms and conditions or any appendix, agreed between the parties thereto.
17. INTELLECTUAL PROPERTY
Any drawings, presentations, licenses, confidential information, released by Maintenance Partners to the Contractor during the execution of the services rendered or products delivered, will remain the sole property of Maintenance Partners. Any personal use or transfer of such documents and knowledge to third parties, without the express written consent of Maintenance Partners, will constitute a breach of property and will give cause to compensation of all damages Maintenance Partners might suffer from such event to its broadest extent possible.
18. ENTIRE AGREEMENT
18.1. This Offer and these terms and conditions will represent the entire agreement between the parties hereto in relation to the works and all previous agreements, understandings, letters, quotations, comments, telexes, telephone communications, drawings, faxes, memorandums or other such documents are hereby agreed between the parties to be excluded and of no further effect.
18.2. These terms and conditions contain 5 pages and form a complete unity of document and agreement with the Offer issued by Maintenance Partners.
19. SPECIAL TERMS AND CONDITIONS FOR HIGH SPEED BALANCING
If any of the terms and conditions mentioned under Chapter 19 is more restrictive then these mentioned in Chapter 1 to 18 of this document, than the terms and conditions mentioned under Chapter 19 will be applicable.
19.1.The balancing prices mentioned in the quotation, are based upon balancing completion within two working day shifts of 8 hours. If the condition of the rotor will not allow finishing its high speed balancing into the required standards during this time, the time beyond 2 working day shifts will be considered as extra work and will be charged the amount of 1/16 from the basic price list in a given category for each extra hour of work during daytime, extra hours in overtime will be charged as overtime.
19.2.Price is excluding
- Not mentioned work
19.3.Delivery is according EXW INCOTERMS 2010, excluding transport. Delivery of the rotor should be between 07.30 a.m. and 15.00 p.m.
19.4.Delivery time is on or before ….
- The balancing deadline is only valid if the rotor is delivered to Maintenance Partners two weeks before requested balancing period and if the rotor meets the technical specifications provided by the Client change and the cause of it, in advance.
- The balancing deadline is only valid if the specified sizes of the rotor bearing journals, included in the technical specification, correspond to the actual values.
If the Client fails to comply with any of the conditions included or provides incomplete or incorrect information, the original balancing period may be postponed to another date. Maintenance Partners will inform the Client in advance about the date.
19.5.Insurance: The rotor shall be insured against possible damage in our workshop, free of cost to Maintenance Partners. If the rotor insurance needs to be covered by Maintenance Partners, we require the price for a brand new rotor. We will gladly make you an offer for the costs for such insurance upon request.
19.6.Damage liability: the Client hereby agrees to assure that the rotor to be balanced on the balancing equipment of Maintenance Partners shall be free of any defects or damage that might damage the balancing equipment during the process of balancing or threaten or injure employees of Maintenance Partners or third parties present near the balancing equipment with the consent of Maintenance Partners. Maintenance Partners shall not be liable to verify the rotor before commencement of the balancing process. In the case when the Client violates the above mentioned liability, the Client shall bear full responsibility towards Maintenance Partners for any damage caused by the violation.
19.7.Consequential damage: whether resulting from breach of contract, guarantee, injustice or otherwise, the customer shall not be entitled to any claims against Maintenance Partners as a result of any incident or damages, including but not limited to loss of profit, loss of product, loss of use, waiting time expenses or loss of interest.