Sales conditions
article 1 Conclusion of the contract
1.1 The contract is concluded when the Customer accepts KoMotion BV offer in writing.
1.2 The offer, as well as all the documents referred to in the offer, including the present general terms and conditions of sale and contract, constitute the full text of the contract, substituting all prior oral or written proposals and/or documents and/or general terms and conditions emanating from the Customer, as well as all other information provided prior to the conclusion of the contract between the parties.
1.3 Any deviation from any contract clause, including the present general terms and conditions of sale and contract, must be agreed upon in writing.
1.4Any request from the Customer to start executing the Works upon receipt of the offer implies full acceptance by the Customer of the contents of the offer, including the present general terms and conditions of sale and contract.
1.5 Unless provided otherwise in writing all present and future contracts shall be governed by the present general terms and conditions of sale and contract, which form an integral part of the contract, automatically excluding all general terms and conditions emanating from the Customer.
article 2 Customer’s obligation to provide information - drawings
2.1 The Customer guarantees the correctness of the intended use and operation of the equipment to be delivered, as stated by him and confirmed in the offer, amongst other things with regard to the objects to be handled (physical properties, volume, shape, material, provided drawings). The Customer undertakes not to modify said intended use and operation.
2.2The Customer guarantees the accuracy, correctness, and completeness of the information, specifications, guidelines, and instructions provided to KoMotion bv. He confirms and guarantees that at the place of delivery and/or assembly all conditions will be met to ensure that the Works can be carried out in the approved manner, in accordance with the provisions laid down by law and in the contract between the parties.
The Customer particularly guarantees the correctness of the information provided with regard to the production line units into which the equipment to be delivered by KoMotion bv will be integrated. Should said information turn out to be incorrect or inaccurate, the additional engineering costs shall be borne by the Customer.
2.3 Unless agreed otherwise in writing the Works shall be carried out on the basis of execution drawings approved by the Customer. The drawings shall always prevail over the technical descriptions. The Customer undertakes to pay all extra costs arising from modifications to said drawings following their approval.
article 3 Contract documents
3.1 In case of contradictions between documents of the same nature, more recent documents shall always have preference over older documents.
3.2 The Customer undertakes to immediately inform KoMotion bv of any inconsistencies or incompatibilities.
article 4 Confidentiality
4.1 The term “Confidential Information” shall be taken to mean any information in any form whatsoever that is not common or public knowledge, including but not limited to any data, drawings, pictures, documentation, software, methods, operating instructions, formula’s, research and development data, and data regarding the execution of the Works, which belong or shall in the future belong to KoMotion bv .
4.2 All Confidential Information belonging to KoMotion bv shall remain its exclusive property.
4.3 Said Confidential Information may not be copied in any form or otherwise disclosed to third parties without KoMotion bv’s prior written consent.
The Customer undertakes to strictly observe this article and to ensure its strict observance by his contractors, contracting partners, staff members, and in general by anyone rendering services to the Customer.
4.4 If an offer does not result in an order, the Confidential Information and all the original data storage media, as well as the copies, must be returned to KoMotion bv immediately.
4.5 If the customer breaches confidentiality, he shall automatically be liable to pay damages amounting to at least 5% of the final contract price, without prejudice to KoMotion bv’s right to claim more if it can produce evidence of greater loss, and to invoke one or more of the remedies referred to in Article 12.
article 5 Intellectual property rights
5.1 KoMotion bv shall retain the exclusive ownership of all the intellectual property rights associated with KoMotion bv's Confidential Information and with the execution of the Works, including copyrights, manufacturing secrets, patent rights, trademark rights, model rights, and all other intellectual property rights.
The Customer shall only acquire a personal, non-transferable and non-exclusive right of use for the purpose of and limited to the execution of the Works and the use of the delivered goods.
KoMotion bv reserves the right to use said Confidential Information and data, as well as any methods, procedures, techniques, and ideas whatsoever, when carrying out work for third parties.
If the Customer breaches this article, he shall automatically be liable to pay damages amounting to at least 5% of the final contract price, without prejudice to KoMotion bv’s right to claim more if it can produce evidence of greater loss, and to invoke one or more of the remedies referred to in Article 12.
5.2 The Customer is familiar with the intellectual property rights associated with the standard software, which KoMotion bv integrates in the equipment it delivers, as well as with the applicable restrictions regarding the use of said standard software, and undertakes to observe them.
5.3 KoMotion bv shall acquire a right of use with regard to all the intellectual property rights associated with the Customer’s Confidential Information, including copyrights, manufacturing secrets, patent rights, trademark rights, model rights, and all other intellectual property rights.
The Customer shall guarantee that the execution of the Works does not violate any third-party intellectual property right. He shall indemnify KoMotion bv against all claims submitted by third parties and against any damage arising from them, due to amongst other things alleged breaches of copyrights, manufacturing secrets, patent rights, trademark rights, model rights, and all other intellectual property rights. The Customer undertakes to reimburse all costs incurred due to said breaches, including court costs, and the costs and fees for legal assistance.
article 6 Price
6.1 The applicable conditions for price revisions shall be included in the special terms and conditions.
6.2 The price shall automatically be increased by all the taxes and duties levied now or in the future by any competent authority, at their applicable rate at the delivery date.
6.3 Are not included in the price:
- Installation costs, unless agreed otherwise. A separate offer shall be drawn up with regard to said costs. The equipment is always fitted under KoMotion bv’s management.
- Transport costs, unless agreed otherwise;
- Modifications to the delivered equipment after its delivery and fitting at the Customer’s premises, as referred to in Article 15.2.;
- Costs of translating the technical manual from English into the language requested by the Customer. The provided manual is always drawn up in the language of the user.
- Specific types of packaging (e.g. in case of air freight).
article 7 Invoices - payments
7.1 All invoices must be paid at KoMotion bv’s registered office, in cash and without any reduction.
7.2 Without prejudice to the provisions of Article 12, in case of late payment, a conventional interest of 1% per month shall apply automatically from the due date onwards without any notice of default being required.
7.3 If any outstanding amount is not paid by its due date and a notice of default has been sent by registered mail, any such amount shall be automatically increased by 12% as a fixed conventional compensation for extra-legal costs. This compensation is subject to a conventional interest of 1% per month or part of a month, as from the notice of default by registered mail.
article 8 Direction and supervision of the execution of the Works
8.1 The names of all the persons directing or supervising the execution of the Works on behalf of KoMotion bv or of the Customer shall be included in the special terms and conditions.
8.2 Within the framework of the execution of the Works, only the parties’ legal representatives or the persons entrusted with the direction and supervision of the execution of the Works, whose names are included in the special terms and conditions, are authorized to give instructions or to conclude agreements. The parties shall not be bound by instructions or agreements that do not emanate from or have not been confirmed in writing by one of the afore-named persons.
article 9 Modifications to the Works
9.1 Instructions to modify the Works, including changes to the time schedule, must be given in advance and in writing. Any such instruction must be signed by the persons referred to in article 8.
9.2 Any modification to the Works shall automatically imply an extension of the delivery times agreed upon.
9.3 The unplanned works to be carried out by KoMotion bv, as well as all other modifications, shall be charged at the unit prices stated in the offer or at unit prices to be agreed upon.
In the event of any part of the Works being cancelled, KoMotion bv shall be entitled to compensation equal to the direct costs actually incurred and to the work actually performed plus an indemnification for the profit lost estimated at 20% of the price of the non-executed part of the Works. The Customer must indemnify KoMotion bv against all claims submitted by subcontractors, suppliers, or third parties rendering services to KoMotion bv.
article 10 Terms
10.1 The time schedule with regard to the execution of the Works shall be described in detail in the special terms and conditions, or in the annexes.
10.2 Unless manifestly unreasonable and entirely attributable to KoMotion bv, a delay in the execution of the Works shall not give reason for the dissolution of the contract.
KoMotion bv's liability vis-à-vis the Customer shall in any event be limited to the direct and foreseeable damage and shall in no event exceed 5% of the contract value.
10.3 In case of any delay in the payment of advances, the delivery period shall be extended accordingly.
10.4 Any changes to the time schedule by the Customer, for whatever reason, shall entitle KoMotion bv to claim compensation for its loss and costs.
article 11 Delivery – retention of title
11.1 All goods and materials ordered shall be delivered ex works/warehouse. The risk of transport shall be carried by the Customer.
11.2 It is the Customer’s duty to ensure that at the delivery address all the necessary precautions have been taken and all conditions have been met to guarantee that the delivery can take place in suitable circumstances and on the agreed date, without KoMotion bv having to check it beforehand. All costs and damage caused by the fact that the above has not been complied with, including the costs due to the loss of time for KoMotion’s workers, shall entirely be borne by the Customer.
11.3 At each partial or complete delivery, performance and/or repair KoMotion bv shall issue an order form, delivery note, or service report that must be signed by the Customer or by one of the persons referred to in Article 8.
11.4 If the Customer refuses to accept delivery or makes it impossible to carry out the delivery, the contract shall be automatically deemed dissolved to the detriment of the Customer. The Customer shall furthermore be liable to pay damages, without prejudice to KoMotion bv’s right to claim more if it can produce evidence of greater loss. Said damages shall amount, as a minimum, taking into account the potential loss, to a fixed sum of 30% increased to 100% of the price excluding VAT, depending on the degree of completion of the Contract.
11.5 All goods remain KoMotion bv’s property until full payment of the price and the extras. Till that date, the Customer undertakes:
- Not to alienate, pledge or encumber such goods with securities without KoMotion bv's prior written consent;
- To administer the goods with due care and to insure the goods against all risks;
- To grant KoMotion bv free access to all the premises where the goods are kept;
- To return the goods to KoMotion bv at its first request or to put them at its disposal, and to pay all the disassembly and transport costs.
If the Customer has alienated the goods, he shall give his claim on the subsequent buyer in pledge to KoMotion bv.
article 12 Remedies – setoff and indivisibility of accounts
12.1 If the Customer fails to fulfil any obligation under the present contract and does not reply to a registered letter within a period of eight calendar days, KoMotion bv shall be entitled to invoke one or more of the following remedies at the expense and the risk of the defaulting Customer, provided that the latter is notified of this decision by registered mail:
- Suspend the Works;
- Unilaterally rescind the contract;
- Cancel other orders, both from the Customer and from his affiliated or associated companies;
- Demand immediate payment of the Works already carried out, regardless of the terms of payment agreed upon;
- Refuse to return advance payments and use them in settlement of any amount due (principal, interests and damages);
- Invoke the right of retention in respect of all the Customer’s goods held by KoMotion bv;
- Demand the return of all the goods already delivered;
- Store or preserve the Works already carried out or the (raw) materials already purchased at the Customer’s expense until full payment of the principal, the interests, and the damages is received.
12.2 In the event of a unilateral contract rescission, KoMotion bv shall automatically be entitled to compensation equal to the direct costs actually incurred and to the work actually performed plus an indemnification for the profit lost estimated at 20% of the price of the non-executed part of the Works.
12.3 The accounts between KoMotion bv, the Customer, and their respective affiliated and associated companies shall be kept according to the principles applicable to current accounts. This means that all the transactions, debts, and claims of each party vis-à-vis the other party, even if they arise from separate contracts, shall be entered into one indivisible account, to which the rules of the current account relationship shall apply, resulting in the automatic setoff of mutual debts.
article 13 Acceptance
13.1 KoMotion bv shall summon the Customer in writing to attend the provisional acceptance at its workshop.
13.2 Within fifteen days of receipt of KoMotion bv’s summons, a statement of provisional acceptance or rejection shall be drawn up. The provisional acceptance shall take place in the presence of the Customer or of his representative appointed according to Article 8, after having been summoned in due time. If the Customer refuses to attend the provisional acceptance, it shall be carried out pro forma by KoMotion bv on the Customer’s responsibility, who will receive a report.
Remarks, if any, shall be included in the statement of provisional acceptance. The same applies to the period of time agreed between the parties for carrying out such works.
In the event of provisional acceptance, even with remarks, the Works shall be deemed completed at the date of the summons to attend the provisional acceptance.
13.3 The final acceptance shall take place after the delivery and fitting of the equipment at the Customer’s premises. A statement of final acceptance shall be drawn up. The final acceptance can also be deduced from the Customer’s taking possession of the goods, their putting into use, the absence of complaints over a certain period of time, the acceptance of the invoice, partial or full payment.
13.4 All costs associated with the inspection at KoMotion bv’s workshop and at the Customer’s premises (including the travel and accommodation expenses of the persons entrusted with the inspection) shall be borne by the Customer.
article 14 Guarantee and hidden defects
14.1 If a defect is found within twelve months of the final acceptance date, said defect shall be presumed present at the final acceptance date, until evidence to the contrary is provided.
14.2 In the event of a proven defect, even within the twelve-month guarantee period, the Customer shall only be entitled to demand KoMotion bv to repair the goods or to replace them, at Komotion bv's sole discretion, in either case free of charge.
14.3 Apart from the costs strictly related to such repair or replacement, KoMotion bv shall not be liable for any other costs, transport and travel costs, installation costs, expenditures, damages, or any other financial obligations that are directly or indirectly brought about by the proven defect in the goods or materials. Any other liability that is imposed by mandatory law shall, to the extent permitted by such mandatory law, be limited to the amount covered by KoMotion bv’s insurance.
The Customer shall indemnify KoMotion bv against all claims submitted by third parties with regard to the delivered goods, as a result of which said maximum obligations would be exceeded.
14.4 The Customer shall lose the right to invoke the twelve-month guarantee or the obligation to indemnify hidden defects, if he does not inform KoMotion bv within a reasonable period of time following the date on which he found or should have found such defect. Such notification must include a precise description of the nature of the defect.
14.5 All claims based on the twelve-month guarantee or for hidden defects expire in the event of changes and/or repairs made by the Customer or a third party, or in case of resale of the delivered goods. The claim to guarantee shall also expire if the delivered goods are not assembled, processed, or used according to KoMotion bv’s instructions accompanying the delivery, and of which the Customer declares having received a copy. The same applies if the goods have not been submitted to the prescribed check-up or have not been maintained according to KoMotion bv’s maintenance instructions accompanying the delivery, and of which the Customer declares having received a copy.
14.6 The Customer shall in any case lose the right to invoke a hidden defect, if he does not inform KoMotion bv within two years of the actual delivery date of the goods to the Customer, unless a different guarantee period has been included in the special terms and conditions.
All the Customer’s claims shall become invalid twelve months after the notification of the
defect.
article 15 Liability
15.1 KoMotion bv is obliged to perform to the best of its ability and does not provide any guarantee as to the result obtained, with regard amongst other things to error rates, capacities, or any other performance criteria.
15.2 The Customer acknowledges that the performance of the delivered equipment, if integrated in the Customer’s production line, depends on and is determined by the properties (temperature, shape, material, uniformity) of the objects to be handled (bottles, recipients, and technical components).
The Customer acknowledges that modifications are or may be necessary if the properties of the objects to be handled were not known in sufficient detail beforehand and/or if it was impossible to carry out tests at the provisional acceptance date simulating real operating circumstances.
15.3 KoMotion bv shall assume no liability whatsoever for any damage directly or indirectly resulting from any change by the Customer of the intended use and operation of the equipment to be delivered, with which the latter is familiar, with regard amongst other things to the objects to be handled (volume, shape, material, chemical composition).
15.4 The extent of KoMotion bv’s liability due to possible shortcomings/defects with regard to the components (including, but not limited to the electrical, electronic and mechanical components) it integrates in the equipment it delivers, shall in any event be limited to the interventions and guarantees offered by the respective suppliers.
15.5 The extent of KoMotion bv's liability due to possible shortcomings/defects with regard to the standard software it integrates in the equipment it delivers, shall in any event be limited to the interventions and guarantees offered by the supplier/licenser.
15.6 KoMotion bv’s total liability vis-à-vis the Customer, for whatever reason, shall in any event be limited to compensation of the direct and foreseeable damage to the delivered goods, excluding all damage with regard to their use or utilization (including loss of data), not exceeding the amount KoMotion bv invoiced for the delivered goods, or for that part of the delivery to which the complaint pertains.
15.7 If the goods delivered by KoMotion bv have to be integrated in a production line, the final responsibility in respect of said production line’s compliance with all the applicable European regulations (CE label) or with other similar regulations applicable outside the European Economic Area shall rest with the Customer.
article 16 Bankruptcy
If the Customer is declared bankrupt, is granted legal composition, or goes into liquidation, KoMotion bv shall, automatically and without any warning being required, be entitled to invoke remedies and claim compensation, as described in Article 12.
article 17 Force majeure
In case of "foreign cause" (art. 1147 of the Belgian Civil Code), even if this does not lead to a permanent and/or complete impossibility to carry out the contract, the parties shall have the right, by law, to postpone or to annul their commitments unilaterally, after giving prior notice thereof to the other party. Such postponement or annulment shall not entitle any party to any compensation.
Conventional "foreign causes" include, without limitation: war, a strike or lock-out, extreme shortage of raw materials or goods, weather conditions, fire, natural and/or other disasters, governmental decisions and decisions taken by the Customer that influence the execution of the contract. This provision shall apply irrespective of whether these "foreign causes" occur at KoMotion bv, the Customer, or any other contracting partner.
Article 18 Jurisdiction and applicable law
Belgian law applies to this agreement. In the event of a dispute, only the courts of the judicial district of East Flanders, Dendermonde division, shall have jurisdiction.
This jurisdiction clause shall also apply in case of urgency (e.g. summary proceedings).
Drawing or accepting bills of exchange does not imply any novation and shall not alter the jurisdiction in disputes.
The present general terms and conditions shall be governed by Belgian law. All other matters that have not been expressly specified shall be governed by Belgian common law. The applicability of the Vienna Convention on the International Sale of Goods or any other convention is hereby explicitly excluded.