General terms and conditions of sale EFOODCONSULT BVBA

Article 1 : general provisions

• The following terms of sale apply to all tenders, deliveries and services from Efoodconsult BVBA (hereinafter referred to as"Etheclo")to the buyer (hereinafter referred to as "the customer"), subject to a different written agreement.
• Customer terms and conditions only apply if expressly and in writing accepted by Etheclo..

Article 2 : tenders

• Each offer shall be valid without obligation and valid for a maximum of one month from the date of handover,  unless otherwise written.
• Each offer is based on execution under normal conditions and during normal working hours.

Article 3 : Agreement

• The agreement shall be concluded on the day of the signing of the contract by  Etheclo  or  on the day of dispatch of the written contract confirmed by  Etheclo.
• Etheclo will endeavour to implement the agreement, which involves a commitment of means,  to the best of its ability and insight.
• The agreement includes Etheclo's ability to charge  for additional work separately,  as soon as the amount to be charged is known to her. Additional work shall be considered as all the services  performed by Etheclo on top of wat was stipulated in the agreement.
• No oral order will be registered if it was not confirmed by the return of our tender duly signed and dated by the customer via e-mail or letter. All orders or orders handled by our representatives are only valid after written confirmation from our company; however, an order signed by the customer is regarded as his final commitment.
• Written and transmitted orders are not cancellable. If the customer unilaterally cancels the order, the minimum compensation to be paid  to  Etheclo is at least  40% of  the value of the order. However, this does not affect the right of Etheclo to claim compensation for the totality of the damage suffered by  it, if it is higher. Paid amounts remain in any case acquired by  Etheclo.
• Leases are concluded indefinitely and cannot be terminated in the first 12 months after the conclusion of the agreement, unless agreed otherwise in writing and explicitly. From the 13th month onwards, the contract can be terminated with a notice period of 6 months or the payment of compensation of 3 months.

Article 4  : information

• Etheclo provides  its services within the context of the information provided by the customer. The customer undertakes to provide all necessary and relevant information to  Etheclo.  Etheclo  is not required to exercise control over and is not liable for the  content accuracy and completeness of the data provided by the customer.  

Article 5  : prices and payment

• If after the date of the offer or tender,  one  or  more cost factors have increased,  - even if this is subject to foreseeable circumstances, Etheclo  will have the right  to increase the price accordingly.
• Activities carried out on a fee will be invoiced at standard  rates.  These rates can be requested from  Etheclo.
• The prices, excluding VAT, taxes, duties, etc. are charged per invoice and are payable latest on the expiry date, which is 1 month after the shipping date, indicated on the invoice, except for different specific arrangements as included  in contracts/order confirmations.  All payments must be  made  to the  registered office  or to a dedicated account of Etheclo and without any deductions or set-offs.  Any complaints concerning  the invoices must be  done by registered mail and must reach us within 15 days following to the date of the invoice.
• Any bank charges associated with bank transfers, bank guarantees, L/C's and similar are at the customer's expense.
• In the case of non-commitment, interest shall be legally payable from the expiry date  of 1 % per month, without prejudice to the duties  which  Etheclo has under default and under those conditions. Without prejudice to the above provisions,  Etheclo  is also entitled to a flat-rate compensation of  5%  on the invoice with a minimum of 25 Euro, plus the reimbursement of court costs.
• The non-payment on the expiry date of a single invoice makes the balance due of all other invoices, which are not even expired, immediately payable. In the case of non-payment within 14 days of the payment date,  Etheclo may immediately, without notice, terminate the contract at the  customer's expense.

Article 6  : non-Belgian customers : reporting of intra-Community deliveries/VAT

• Etheclo assumes that these services are taxable in the customer's country and not subject to VAT when performing  services on behalf of the customer.
• Etheclo  must include these transactions in a Community listing. If this assumption is not  correct, it is the customer's duty to inform Etheclo in writing.
• Erroneous application of these principles can result  in incorrect VAT-reporting and VAT-penalties. Etheclo  reserves the right to transmit to the customer all liabilities arising  by  incorrect reporting due to erroneous assumptions or information by the customer, and  will invoice any VAT-penalties and interest resulting from this.

Article 7 : descriptions, drawings, models, software

• Catalogues, images,  drawings, measures and specifications, etc., and all other information mentioned is not binding, except in so far as they are expressly included in  a contract signed  by the parties or a contract confirmation signed by  Etheclo.  
• The tender  issued  by  Etheclo as well as the  drawings, software, programmes,,  descriptions,etc. produced or provided by  it, remain its  property, unless  otherwise  explicitly and in writing agreed with the customer, even if the customer has been  charged for it. With regard to software, the customer does not receive the it-exclusive right of use within his specific organization and plants, unless  otherwise  explicitly and in writing agreed with the customer. The  customer agrees that he does not use, provide, modify, show or copy any data relating to the software, programs, manufacturing and construction methods supplied by  Etheclo to third parties without the express written consent of Etheclo. The customer  is  liable for any abuse  and Etheclo  reserves its right  to claim damages in case of infractions.  
• If a  draft /functional analysis was made for the assignment,  once the agreement between Etheclo  and the customer has been signed, this draft will become binding and will take precedence over any other conflicting documents.

Article 8 : Delivery

• Etheclo specifies the delivery period  when the contract is concluded.
• Deliveries shall be made ex works according to Incoterms applicable on the date of the tender, excluding VAT, expressed in euro, unless expressly agreed otherwise in writing (Article  9).
• The goods will be considered as being delivered when they entirely, or their most important components, are ready for assessment in the plants of  Etheclo and can be picked up by the customer.  If the contract stipulates that the goods have to be delivered on site, the goods will be considered as being delivered when they are made available on the customer's site.
• Materials supplied will not be recovered.
• The delivery terms are based  on the working conditions and delivery times of the materials  that were valid at the time of the conclusion of the agreement. If a delay arises due to  a  change in  these working conditions  or because the materials ordered are not delivered in time for the performance of the  work,  the  delivery time shall be adjusted accordingly. Etheclo will inform the customer in a timely manner.
• The delivery times that Etheclo gives are always non-binding. Nevertheless,  Etheclo will make its best efforts to respect them as much as possible.
• Non respect of delivery terms, by any reason, will never give the right to the customer for compensation or be a valid reason to the termination of the contract or not-compliance with his obligations.
• The entry into service of the goods, also partially, always means their acceptance, even though a planned acceptance test or a formal delivery of the goods was not carried out.
• Any delay of the delivery, due to the  customer, will imply a custody fee of  1% of the month started. The risk of storage is taken by the customer. Etheclo will insure the goods against theft, loss and fire damage, the costs of which will be passed on the customer.

Article 9  : Assembly/acceptance test

• In case parties have agreed the assembly of the goods, the customer is responsible for the correct and timely execution of all facilities and conditions, which are necessary for assembling and installing the goods.
• Without prejudice to paragraph 1, the customer shall in any event take care for his own account and risk that:
  • Etheclo staff may commence and continue to carry out their duties on arrival at the place of setup during normal working hours.
  • Suitable housing and/or all provisions required by law, agreement and use for Etheclo personnel.
  • The access roads to the place of installation are suitable for the required transport.
  • The place of installation is suitable for installation and storage and the necessary lockable spaces for material.
  • The necessary and usual auxiliary workers, auxiliary equipment (such as racks, height workers, hoists, cranes, ladders), auxiliary equipment(such as water, electricity etc.)
  • All safety and precautionary measures have been taken and are maintained.
•  In the assembly are not included : masonry, carpentry, painting or other similar works.
• In the event that an acceptance test has been agreed, the customer will, after receipt or after the assembly of the goods, allow Etheclo to carry out the necessary tests as well as to make those improvements and changes that Etheclo deems necessary. The acceptance test will be held in the presence of the customer immediately after Etheclo's  request.  If the acceptance test has been carried out without a legitimate complaint or if the customer does not fulfil his aforementioned obligations, the goods shall be deemed to have been accepted.
• For the acceptance test and for other tests, the customer makes available to Etheclo the necessary facilities, personnel, materials and auxiliary goods to a sufficient extent, timely and free of charge, in the right place, so that the conditions of use provided by parties for the product can be simulated as much as possible.  If the customer does not comply, the delivery is deemed to have been accepted.

Article 10  : Risk and transfer of ownership

• In the event that the goods or the main parts have been delivered, the customer shall bear the risk of any direct and indirect damage which may have occurred to or from such goods or  parts. Even in  the case of free shipments, the risk is transferred to the customer from the moment of shipment.
• Without prejudice to the provisions of the preceding  paragraph, ownership of the goods shall only be transferred to the customer when all the amounts owed to Etheclo for the delivery, whether or not assembled, including interest and costs, have been paid.
• Without prejudice to its other rights,  Etheclo is irrevocably authorized by the customer to disassemble the property it has supplied and which has been installed on movable  or  immovable property on the first claim and to take it upon itself while retaining the right to compensation for any damage resulting from such claim,  if the customer does not meet with his payment obligations within the agreed payment period (Art. 5) and such without any notice of default or judicial intervention.

Article 11 : Recruitment

• The customer will not recruit any staff member of Etheclo for the duration of this or any other Agreement, including renewals as well as for two years after their termination. For the purposes of the previous paragraph, "staff" shall mean all employees employed by Etheclo at the time of signing of this Agreement, and all employees,  subsequently employed until the termination of the contract.
• In case of non-respect of this article, the  customer will pay Etheclo a  flat-rate compensation equal to  12 months gross salary of  the recruited member of staff.

Article 12: Warranty

• With regard to the visible defects in the quality or conformity of the goods, the customer must carry out checks or inspections at the  latest within 14 days after the delivery of the goods. If that period is exceeded,  any  claim to  Etheclo  relating to these visible defects shall cease. This is particularly relating to isothermal boxes and eutectic plates.
• The standard warranty period after delivery is 6 months for software and 1 year for hardware (communication infrastructure). However, Etheclo does not give more guarantee to third-party components than is given to it by the third party supplier.
• The defective parts  covered by the warranty  are repaired or replaced by Etheclo.  All costs  except repair or replacement costs,  are at the expense of the customer.
• Not included in the warranty are the defects resulting of:  (a) a failure to comply with operating and maintenance instructions and improper use,  (b)assembly, installation or repair by the  customer  or by third parties without the consent of Etheclo, (c) materials or products offered by the customer for processing,  (d) materials, products, practices and constructions made on the explicit request by the customer as well as materials or items supplied by him. 
• When Etheclo replaces parts of hardware, in order to comply with its warranty obligations, it becomes the owner of the replaced parts.
• In the case of repair or revision work carried out by  Etheclo,  the original warranty period be maintained.
• In the case of replacement or repair, the original warranty period on the  replaced  or repaired goods shall be maintained,
• Complaints should  be made as soon as possible after their discovery and at the latest within 14 days after the expiry of the warranty period.  If the time limit referred to is  exceeded,   any claim against Etheclo in connection with the aforementioned broken time shall be voided.  Legal claims expire one year after the timely submitted complaint.
• The claim that Etheclo does not comply with its warranty obligations does not relieve the customer of its obligations.
• If the customer does not comply in due time or properly with the agreed obligations,  Etheclo will not be obliged to provide any guarantee.

Article 13 : Liability

• Etheclo will make every effort to perform the agreed work to the best of its knowledge and ability in accordance with the requirements of good workmanship.
• Customers who work with Etheclo's sensors accept that there may be a failure of measurements, depending on environmental factors. On average, Etheclo strives for a capture of 80% of the measurements and Etheclo will endeavor to achieve the best possible result. The customer accepts this best efforts obligation.
• Etheclo is not liable for costs, damage and Interests that may arise as a direct or indirect result of the infringement of patents, licenses or other rights of third parties as a result of use by or on account of information provided by the customer.
• Etheclo can only be held liable for an attributable grave error or serious negligence in the performance of the agreement or in case of intent. The total liability to which Etheclo could be held by virtue of its contractual and / or extra-contractual liability is limited to compensation for direct damage up to a maximum of the amount of the price stipulated for that agreement (excluding VAT). Under no circumstances will the total compensation amount to more than the damage covered by Etheclo's insurer. Direct damage is exclusively understood to mean the reasonable costs to have Etheclo's performance conform to the agreement or to determine the cause or extent of the direct damage, incurred to prevent or limit the damage.
• Etheclo's liability for indirect damage or immaterial damage such as, but not limited to, consequential damage, loss of sales, loss of profit, lost savings, loss of customers or contracts, loss or damage of data and all other forms of damage than mentioned in this article for whatever reason are excluded.
• Any liability of Etheclo is also excluded for damage or loss of models, equipment, tools, etc. made available by the customer.
• Any complaints about the services provided must be reported in writing by the customer to Etheclo within 8 days after discovery and no later than 14 days after completion of the relevant work.
• The customer indemnifies Etheclo and is obliged to indemnify Etheclo for all costs, damage and interest that may arise for them as a direct or indirect result of legal claims instituted against it by third parties during the execution of the agreement.

Article 14 : Insurance

• The customer undertakes not to hold Etheclo liable for claims that fall outside or above Etheclo's insurance policies. Etheclo will provide the customer with an insurance certificate upon request.
• If the customer wishes additional cover, which falls outside or higher than the insurance cover of Etheclo, the customer must make this known before the contract is concluded and the costs for the additional insurance will be borne by the customer.

Article15 : Force majeure

• Force majeure is understood to mean any circumstance beyond the control of Etheclo - even if this could already be foreseen at the time of the conclusion of the agreement, which permanently or temporarily prevents fulfillment of the agreement, such as but not limited to the risk of war, civil war, riots, strikes, pandemics, lockout of workers, transportation difficulties, fires and other serious disruptions in Etheclo's business or its suppliers.
• In case of impediment to the performance of the agreement due to force majeure, Etheclo is entitled to either suspend the performance of the agreement or to dissolve the agreement in whole or in part, without being obliged to pay any compensation. In both cases, Etheclo is entitled to demand payment for the raw materials, materials, parts and goods it has reserved, processed and manufactured for the performance of the agreement, for the value that must reasonably be attributed to them.

Article 16 : Suspension and dissolution

• Etheclo is authorized, without notice of default and without judicial intervention, to suspend the fulfillment of its obligations or to dissolve the agreement if the customer does not or not fully fulfill the obligations under the agreement, or if there is serious doubt that the customer does not fulfill his obligations, as well as in the event of bankruptcy, judicial composition, suspension of payment, closure, liquidation of the customer.
• If the agreement is suspended, Etheclo's claims against the customer are immediately due and payable.
• Etheclo always reserves the right to claim compensation.

Article17 : Confidentiality

• The customer is required to keep secret all confidential information obtained under the  Etheclo agreement or from any other source.
• Information is considered confidential if it has been communicated by Etheclo or if it results from the nature of the information.

Article 18  : Jurisdiction and applicable law

Belgian law is always applicable to the agreements between the parties.

All disputes in connection with the interpretation and / or implementation of the agreements fall under the exclusive jurisdiction of the Commercial Court in Dendermonde. However, Etheclo reserves the right to submit disputes, in which case it is the claimant, to arbitration.

Final Provision

Current general terms of sale apply from 01 July 2020.