General terms and conditions of sale
The general terms and conditions of sale of Metal Spark bv.
1. Scope
1.1
All orders accepted by Metal Spark are governed exclusively by these General Terms and Conditions of Sale (the “Terms”), including orders placed by telephone but not confirmed in writing, and orders carried out through the delivery of samples or carried out on site. An agreement under these Terms only comes into being once the order placed with METAL SPARK has been accepted by METAL SPARK. An order placed with METAL SPARK is deemed to have been accepted by METAL SPARK when (a) METAL SPARK begins performing that order, in which case written confirmation by METAL SPARK is not required, or (b) METAL SPARK accepts the order in writing.
1.2
These Terms cancel and replace all earlier oral or written quotations and agreements between the parties and, unless otherwise agreed therein, take precedence over any conflicting or deviating terms in written agreements arising from them between the parties. No employee (other than the Managing Director), member of staff, agent or subcontractor of METAL SPARK is authorised to amend or withdraw any provision of these Terms, or to make any statement that conflicts with or purports to set aside any provision of these Terms; and no such amendment, withdrawal or statement is binding on METAL SPARK unless signed in writing by the Managing Director of Metal Spark.
2. Placing an order
2.1
An order from a customer is valid only if it is sent and received by post or by another means of electronic communication, using the customer’s letterhead or an approved sample submission document or electronic order forms, and agreement must be reached at the time of the order on those commercial aspects not specifically covered by these Terms (including price, estimated turnaround time and delivery date). The customer must confirm orders given by telephone in writing immediately after placing them, and is deemed to have placed an order if it sends METAL SPARK a sample quoting the customer reference. METAL SPARK is under no obligation to begin analytical work of any kind unless the content of the order is clear and all required information has been received.
2.2
Except in the case of specific written acceptance and signature by the Managing Director of METAL SPARK, any condition proposed or imposed at any time by a customer (including, but not limited to, terms or provisions in the purchase order, instructions or any other document of the customer) that deviates from these Terms is rejected as a material amendment to these Terms, and will be without validity or effect. Furthermore, special conditions from earlier orders, including special price arrangements, do not automatically apply to later orders. Every order accepted by METAL SPARK is treated as an individual contract between METAL SPARK and the customer.
2.3
Requests for additional services relating to samples already transferred to the laboratory are treated as new orders and may lead to a proportionate adjustment of the delivery date.
2.4
Logistics services outside the laboratory must be paid in full, unless the assignment is cancelled or amended by the customer at least twenty-four (24) hours in advance for pick-up services and forty-eight (48) hours for sampling services. Sample shipments from the customer to Metal Spark are entirely at the customer’s expense, unless clear written arrangements to the contrary were made when the order was accepted. Metal Spark is responsible for packing the samples correctly in the box and for the administrative handling towards the carrier.
3. Prices and payment terms
3.1
Unless stated otherwise on acceptance of an order, all METAL SPARK prices are “ex works”, except for packaging, which is charged separately.
3.2
Prices exclude all applicable taxes (including VAT) and are based on the rates in force on the day the order is transmitted to the customer. The applicable charges are those in force at the time of invoicing.
3.3
Unless expressly agreed otherwise with METAL SPARK on acceptance of an order, the payment term for all invoices is 30 days from the invoice date. Any objection concerning our invoices must be made within thirty days of the invoice being sent. Disputing an analytical result does not entitle a customer to defer payment. If an invoice is not paid by the due date, an administrative charge of thirty-five euros (EUR 35) will be applied, as well as late-payment interest calculated at one per cent (1%) per month.
3.4
The minimum invoice amount is fifty euros (EUR 50). METAL SPARK is entitled to charge an administrative fee of up to fifteen euros (EUR 15) for reissuing an invoice.
3.5
Invoices are paid in cash, by bank transfer or by direct debit. Any other method of payment requires the prior consent of METAL SPARK. The customer undertakes to provide details of its bank account. METAL SPARK is entitled to require payment of up to 100% of the quoted price as a condition for accepting the order.
4. Customer obligations when submitting samples or materials
4.1
The samples or materials must be in such a condition that reports or analyses can be produced, or ordered products manufactured, without difficulty. METAL SPARK is entitled to carry out a preliminary examination of the condition of the samples or materials before proceeding to prepare them, analyse them or draw up a report. The cost of this preliminary examination is borne by the customer if it turns out that the samples or materials do not meet the conditions described in this clause 4.1. If the preliminary examination shows that analysis is not possible, or only possible under less favourable conditions than originally foreseen — for example because the samples or materials have an alloy that falls outside METAL SPARK’s calibration scope, making proper analysis impossible — METAL SPARK is entitled to cancel the order or suspend its performance, with the costs incurred by METAL SPARK up to that point borne by the customer.
4.2
The customer must ensure, and hereby warrants, that no sample presents any danger, whether on its own premises, during transport, in the laboratory or elsewhere, to the buildings, instruments, staff or representatives of METAL SPARK. It is the customer’s responsibility to ensure compliance with hazardous waste regulations, including as regards information, transport and disposal, and to inform METAL SPARK’s staff or representatives of the safety and health aspects of the sample, such as the possible presence of proven or suspected toxic or other contaminating substances and their likely degree of contamination, as well as of the risks to METAL SPARK’s buildings, instruments, staff and representatives arising from that contamination. The customer is liable for, and shall compensate and indemnify METAL SPARK on first demand against, all costs, damage, obligations and injuries that may arise at any time for METAL SPARK or its staff or representatives, including at the sampling location, during transport or in the laboratory, as a result of handling the customer’s sample or the circumstances at the sampling location. The customer bears all extraordinary costs of the proper disposal of hazardous waste resulting from the sample, whether or not designated as such. On first request from METAL SPARK, the customer shall inform METAL SPARK of the exact composition of the samples.
5. Ownership of sample material and storage of samples
5.1
All samples become the property of METAL SPARK to the extent necessary for performing the order. Unless the customer bears the cost of storage, METAL SPARK has no obligation or liability for storing samples sent to it. If the customer bears the cost of storage, METAL SPARK will take commercially reasonable measures to store the samples in accordance with professional practice.
5.2
METAL SPARK may dispose of or destroy the samples two months after the analysis has been carried out, unless METAL SPARK and the customer have agreed in writing on the conditions under which METAL SPARK is to keep the sample or return it to the customer. METAL SPARK may also dispose of or destroy the samples after an agreed storage period, without further notice and at the customer’s expense, if METAL SPARK has to incur additional costs to comply with any regulations (such as those on the disposal of hazardous waste). If the customer requests the return of sample material, METAL SPARK will return that material at the customer’s expense, or at its own expense if so agreed. The risk of returning the samples always lies with the customer.
6. Delivery and turnaround time
6.1
The delivery dates and turnaround times stated by METAL SPARK are purely indicative and do not bind METAL SPARK. METAL SPARK will make commercially reasonable efforts to meet the deadlines it has estimated.
6.2
As a rule, results are sent immediately after completion of the analysis by post, by e-mail or by another means of electronic communication to the persons designated by the customer in the order.
7. Transfer of ownership
7.1
METAL SPARK retains ownership of the goods it supplies, and of the analysis results, products, equipment, software and the like supplied to the customer, until the invoice has been paid in full. Until that payment, the customer has no ownership rights or other rights to use them. Moreover, even if METAL SPARK has accepted an order and begun performing it, METAL SPARK is entitled at any time to suspend further processing of an order and to cease any other work for the customer if the customer is in arrears with payment to METAL SPARK for the order in question or for any other order.
7.2
Even after payment in full by the customer, METAL SPARK retains the right to keep, use and publish all analysis results in an anonymised form that precludes identification of the customer.
8. Limited warranties and responsibilities
8.1
Orders are performed under the conditions available to METAL SPARK and in accordance with the techniques and methods developed and commonly applied by METAL SPARK at the time of performance. Results may not always be entirely exact and/or relevant. Analyses, interpretations, assessments, advice and conclusions are drawn up in accordance with the standards of care customary in commercial dealings, but METAL SPARK cannot guarantee that they will always be correct or absolute. This limited warranty lapses six months after the analyses of the samples are sent, unless the order confirmation states otherwise. In all cases the customer must itself verify the results, interpretations, assessments and conclusions supplied by METAL SPARK if it wishes to rely on them in significant matters, and does so at its own risk.
8.2
Every analytical report relates exclusively to the sample analysed by METAL SPARK. METAL SPARK cannot be held responsible if the sampling plan and/or the scope of analysis proves to be insufficient or inadequate.
8.3
The customer is responsible for the correct submission of samples or materials sent to METAL SPARK for analysis or production. Unless expressly agreed otherwise in writing, METAL SPARK accepts no liability for any damage that may occur to samples during transport or at a facility or site where logistics services are provided. The customer is at all times obliged to ensure the safety, packaging and insurance of the sample, from the moment of dispatch until the moment of delivery at METAL SPARK’s offices or laboratories. METAL SPARK will handle and store the samples in accordance with the standards of care customary in commercial dealings, but cannot be held liable for the loss or destruction of samples, including after their receipt at its laboratories.
8.4
The customer declares and warrants to METAL SPARK that all samples to be sent to METAL SPARK for analysis purposes are safe and in a stable condition, and undertakes to compensate and indemnify METAL SPARK against all damage, injury, claims and costs that may arise for METAL SPARK or its staff as a result of an unsafe or unstable condition of a sample, notwithstanding the fact that the customer has given an indication of a possible problem with the sample on the sample itself or on the order form. If the samples contain hazardous substances or otherwise entail risks, the customer must notify METAL SPARK of this in writing at all times before dispatch and provide the samples, packaging and/or boxes with appropriate markings.
8.5
If analyses are carried out by third parties, and therefore not by Metal Spark, Metal Spark is not responsible or liable for those analyses. Analyses carried out by other laboratories may be released by Metal Spark under the official report of the other laboratory. There must be no uncertainty for the customer as to which laboratory analysed the samples.
9. Limitation of liability
9.1
Except in cases where such limitations are not permitted or are invalid under applicable law: (a) METAL SPARK (and its workers, employees, staff, representatives, managers, appointees, directors, agents and consultants, and all METAL SPARK partners and affiliated companies, “the METAL SPARK indemnified parties”) shall be liable only for proven direct and immediate damage caused by the wilful misconduct of the METAL SPARK indemnified party in relation to the performance of an order, and then only if METAL SPARK has received written notice thereof within six (6) months of the date on which the customer established the claim concerned (except where a longer period is prescribed by applicable laws and cannot be limited by contract); and (b) in all cases (arising on the basis of contract, tort, negligence, strict liability, indemnification or otherwise), METAL SPARK’s liability for any claim or series of related claims, and thus the customer’s exclusive remedy, in respect of services of METAL SPARK falling under these Terms is limited to the lower of the following amounts: (i) the amount of the direct and immediate damage caused by the wilful misconduct of the METAL SPARK indemnified party in the course of performing the order, or (ii) five times the amount that METAL SPARK invoiced to the customer for the order and for which METAL SPARK also received payment in the context of an order, with a maximum of ten thousand euros (EUR 10,000).
9.2
The METAL SPARK indemnified parties are not liable for any indirect, direct or consequential damage (including but not limited to: business losses, loss of turnover, goodwill, business opportunities and the like) incurred by the customer or by third parties.
9.3
Acceptance of an order by METAL SPARK is subject to the condition that the customer indemnifies the METAL SPARK indemnified parties against all damage, injury, claims and costs suffered by METAL SPARK resulting from, caused by or in any way related to its role under, or the services, products or software provided pursuant to, these Terms, with the exception of those cases in which the METAL SPARK indemnified parties are obliged to bear them in accordance with these Terms; and by placing an order the customer agrees to provide this indemnification.
10. Repeat analysis
Objections to test results may be submitted by the customer no later than thirty (30) days after receipt of those results. If the reasoning behind such complaints in connection with an analysis is properly substantiated and rational, a new test will be carried out at Metal Spark’s expense. Furthermore, a repeat analysis is only possible if, at the time the customer’s objection is received, METAL SPARK still holds sufficient original sample material. If that is not the case, the customer is liable for all costs of reconstituting it, including the costs of sampling, transport, analysis and disposal of samples in connection with the repeat analysis.
11. Force majeure
METAL SPARK cannot be held liable for delays, errors, damage or other problems caused by events or circumstances that are unforeseen, that are reasonably beyond METAL SPARK’s control, or that result from compliance with requests from authorities, laws and regulations.
12. Confidentiality and processing of customer data
12.1
METAL SPARK is entitled to store personal data and commercial data received from the customer in its CRM system. If a customer requests the deletion of personal data, that data will be deleted throughout Metal Spark’s entire CRM system. Metal Spark will take commercially reasonable measures to keep all customer and personal data confidential, in accordance with applicable laws. For more detailed information on Metal Spark’s privacy policy, see www.metalspark.be.
12.2
METAL SPARK will take commercially reasonable measures to keep all analysis results and reports confidential, without prejudice to METAL SPARK’s rights as set out in article 7.2 and the right to use them in support of claims for payment for services rendered.
12.3
Analysis results are prepared and supplied for the exclusive use of the customer and may not be disclosed to third parties for any purpose without the prior written consent of METAL SPARK. The customer is furthermore bound to confidentiality regarding all services provided by METAL SPARK and the results, the composition of the products and the software supplied by METAL SPARK. Analysis results may not be made public or exploited without the prior written consent of METAL SPARK. Even if such written consent is obtained from METAL SPARK, (a) the customer remains responsible for all consequences of disclosing those results to third parties and any reliance such third parties place on them, and (b) the customer hereby agrees to indemnify the METAL SPARK indemnified parties against all liability that they might incur as a result of such disclosure or such reliance by a third party.
13. Disclaimer and other provisions
13.1
To the maximum extent permitted by applicable law, Metal Spark disclaims all terms, conditions and warranties (including all implied warranties of merchantable quality or fitness for a particular purpose) relating to the method, quality and timing of the analytical services and to the results, equipment, products or software supplied by Metal Spark. The warranties, obligations and undertakings contained in these terms are exclusive.
13.2
These Terms may be amended in writing by METAL SPARK from time to time, and the most recent version of these Terms in force at the time an order is accepted by METAL SPARK applies to that order.
13.3
If any provision of these Terms is annulled or limited by a court, or found to be invalid, unlawful or unenforceable, all other provisions remain in force as far as possible.
13.4
The fact that METAL SPARK or the customer does not exercise a right under these Terms cannot be construed as a waiver or forfeiture of that right.
14. Applicable law and competent courts
14.1
The interpretation, validity and performance of these Terms fall under the exclusive jurisdiction of the laws and commercial courts of the city and country in which the registered office of the METAL SPARK company that accepted the order is located (including cases involving several lawyers for the defence or third-party respondents).
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