A. OBLIGATIONS OF SMT SERVICES
The obligations of SMT SERVICES include the execution of the work as specified in the offer and as agreed in the service agreement with due observance of the following provisions.
The replacement of consumables, data carriers and accessories, such as paper, films, ribbons, floppy disks and magnetic tapes, and the replacement of consumables and parts mentioned in the agreement or any schedule thereto shall not be included in the work to be done by SMT SERVICES.
Unusual repairs and overhauls shall not fall under the obligations of SMT SERVICES, unless it has been otherwise agreed. The following shall be considered to be unusual repairs: the remedying of defects or failures caused by external influences affecting the equipment and/or extra time needed for maintenance work as a result of such influences, unless such defects or failures and/or such need for extra time are the result of shortcomings that are imputable to SMT SERVICES.
External influences affecting the equipment shall include:
– careless or incorrect use by the Client
– incompetently or carelessly executed repair, cleaning and maintenance work by the Client, its personnel or third parties
– the use of consumables such as, nozzles, feeders and accessories, which do not satisfy the specifications stated by SMT SERVICES.
Overhaul work is work involving the disassembly or reassembly of the entire or a substantial part of the equipment concerned or parts thereof and which is necessary to keep the equipment in normal serviceable condition for more than a short period.
Unusual repair and overhaul work shall be done by SMT SERVICES after agreement has been reached thereon and after an order to such effect has been given in writing. The costs entailed by such work shall be charged to the Client by separate invoice.
B. OBLIGATIONS OF THE CLIENT
Purchase Price/Quantity: Buyer agrees to purchase from Seller and Seller agrees to sell to Buyer the products referenced at the prices and in the quantities set forth.
To the extent necessary the Client shall place equipment, software and data files at the disposal of SMT SERVICES for the purposes of the work to be done, free of charge and during a sufficient number of hours, either continuous or otherwise.
The Client shall take appropriate measures to prevent any damage to equipment, data files, goods and manufacturing processes and any injury to persons, which might occur during and as a result of the work to be done by SMT SERVICES.
The Client undertakes to give SMT SERVICES written notice of any modifications of or additions to the equipment and/or software to which the agreement relates. SMT SERVICES reserves the right to examine the condition of the equipment and/or software after any such modification or addition. Following such examination SMT SERVICES may consult with the Client, if necessary, about the continuation of the agreement. If such modifications or additions entail extra costs with regard to the maintenance work, such extra costs shall be charged to the Client.
Cancellation: If the Buyer cancels an order prior to the product delivery and the Buyer has a legal right to do so, the buyer shall pay the costs incurred by Seller up to the date of cancellation including, but not limited to, the costs to manufacture the product, the costs to provide any training, educational, or other services to the Buyer in connection with the order, a nominal restocking fee, and the costs to return or cancel any product ordered from a third party. In other cases of cancellation, the agreed price remains due and payable.
The Client shall provide all such cooperation and facilities as can reasonably be required to provide for the execution of the work.
Repair work which was taken in hand during normal working hours shall be continued after closing time if the service technician of SMT SERVICES deems it necessary. In general the work will not be continued for more than one hour and during this period some of the Client’s staff will have to be present.
The Client shall treat the equipment with care and protect it from damage, in particular from climatic influences, moisture, dust, etc.
C. FEES AND PAYMENT
Delivery/Payment: (i) All deliveries and payments hereunder shall be stipulated in seller’s individual invoices. If no payment terms are stipulated, the following payment terms shall apply: 60% payment on order, 30% on shipment of product and 10% on completion of installation unless otherwise agreed.
Title of ownership will transfer after full and final payment has been received by Seller. Any delay in payments will incur legal interest immediately as from the due date. If Buyer fails to pay any amount when due, Seller may discontinue the delivery of the product(s) or deduct the unpaid amount from any amounts otherwise owed to Buyer by Seller under any agreement with Buyer, in addition to any other rights or remedies available to Seller. (ii) Unless otherwise stated in its quotation, Seller shall deliver any products FCA SMT SERVICES premises or any other premises indicated by Seller in accordance with the latest edition of the INCOTERMS issued by the International Chamber of commerce. (iii) If Buyer cannot receive product on the scheduled delivery date, Buyer must immediately notify Seller. In this instance, Buyer shall pay Seller the purchase price for product plus reasonable storage charge for product until such time as Buyer accepts delivery of product. All risks, including risks of loss and damage, related to the product pass to buyer at the time of delivery.
The fee shall cover all the work items that have been agreed in so far as they have not been excepted.
In addition to this, the following items will be charged at the current rates used by SMT SERVICES:
– unusual repairs and the parts used in connection with such repairs;
– waiting time if a service technician cannot commence his work immediately at the appointed time or cannot carry out his work without interruption due to causes imputable to the Client;
– any service work requested by the Client without sufficient reason therefor.
Parts that have been replaced shall become the property of SMT SERVICES.
Fees are based on the wage and price levels applying in the month of December preceding the date on which they are communicated to the Client. Annually as per January 1 they shall be adjusted to any changes in the said wage and price levels. If the definitive data required for such adjustment are not available in time, invoices may be sent based on an estimate, which will subsequently be adjusted, if necessary.
The fee shall be payable in advance. A proportionate part of the fee shall be payable upon the agreement coming into effect. All payments shall be made without any deduction or set-off within fourteen days after the invoice date, unless otherwise agreed. If any payment is overdue, the Client shall be in default. From the moment that any payment is overdue SMT SERVICES shall have the right, without any further notice of default being required and without prejudice to SMT SERVICES’ other rights, to charge to the Client all costs incurred in connection with the collection of the amount in arrears and the protection of its rights, including lawyers’ fees, as well as extra costs incurred by the SMT SERVICES organisation, including accounting costs and the cost of legal advice. The Client will also be charged the statutory rate of interest on the amount due.
All amounts are stated exclusive of turnover tax and all other levies, duties or charges payable in connection with the performance of the agreement. These shall be charged to the Client.
D. GENERAL PROVISIONS
Warranty: Seller warrants that new products sold hereunder shall be free from defects in material and workmanship for a period of twelve (12) months from the date of final acceptance. At Seller’s sole discretion, Seller’s obligations under any product warranty are limited to the repair or the replacement of the product or a portion thereof, or to a refund of a portion of the purchase price paid by the Buyer. Replacement parts are new or equivalent to new in performance. Any refund will be paid to the Buyer when the defective product or part is returned to Seller. Any product warranty is made on condition that Seller receives written notice of a product defect during the warranty period and within ten (10) days following the discovery of the defect by the Buyer, and, if so requested, the defective products have been returned to an address or location indicated by Seller. Such defective parts shall become Seller’s property as soon as they have been replaced. Seller’s obligations under any product warranty do not apply to any defects resulting from: (a) improper or inadequate maintenance or calibration by the Buyer or its agents; (b) Buyer or third party supplied software, interfaces, or supplies; (c) use or operation of the product other than in accordance with Seller’s applicable product specifications and written instructions; (d) abuse, negligence, accident, loss; (e) damage in transit; (f) improper site preparation; (g) unauthorized maintenance or modifications to the product; or, (h) any damage to the product – including software – or other stored data caused by an external source regardless of its nature, including but not limited to hacking, (i) viruses or similar software interference resulting from the connection of the product to a network. Seller does not provide a warranty for any third party products furnished to the Buyer by Seller under this quotation. Furthermore this warranty is not applicable for hardware upgrades, spare parts and other excluded items for which specific warranty conditions apply as indicated, provided for or made accessible by SMT SERVICES. SMT SERVICES gives no warranty whatsoever for tooling and consumables.
The parties shall observe secrecy in respect of all information, facts and events which come to their knowledge in connection with the agreement and its performance and the disclosure of which may prejudice the other party’s interests.
SMT SERVICES accepts liability for bodily injury and for damage to or loss of installations and property of the Client to the extent that such injury, damage or loss was caused by the execution of work which must be done pursuant to the agreement, and is due to fault on the part of persons used by SMT SERVICES for performing the said work; in addition, in such case any damage to the equipment to which the agreement relates shall be fully repaired. If in this connection it should prove to be necessary to replace equipment, such replacement shall be effected against payment by the Client of such amount as must be deemed normal depreciation. Before any equipment will be replaced in this manner, the parties shall consult with each other to determine whether replacement of equipment is advisable.
Any compensation paid by the Client to third parties for damage caused in the manner described above under par. 1, shall be reimbursed by SMT SERVICES only if and to the extent that the Client is liable at law to pay such compensation. The Client shall require the prior approval of SMT SERVICES for any payment of compensation to third parties as referred to in the preceding sentence.
SMT SERVICES does not accept liability for damage as referred to above in paragraphs 1 and 2 in excess of 1,000 euro per event.
If SMT SERVICES gives advice, it shall be liable for any damage resulting directly from a provable shortcoming of such advice, if and to the extent that the shortcoming should have been avoided under the given circumstances and with normal professional expertise and attentiveness, up to a maximum equal to the highest amount of the fee stipulated separately for the advice. In other cases SMT SERVICES shall not be liable nor shall SMT SERVICES be liable for any other damage resulting from advice given by SMT SERVICES.
SMT SERVICES shall not be liable for any direct or consequential damage or losses for which SMT SERVICES has not expressly accepted liability. The Client shall indemnify and hold SMT SERVICES harmless from all and any claims of third parties on account thereof.
In the event of any shortcoming of one of the parties in the performance of the agreement which cannot be imputed to the defaulting party, the performance of the relevant part of the agreement shall be suspended. A shortcoming is non-imputable if it is not due to the fault of the defaulting party nor attributable to the defaulting party pursuant to the law, as a result of a legal act or according to common opinion.
The parties shall inform each other of any such circumstance as soon as possible. If the suspension has continued for three months or as soon as it is certain that it will continue for at least three months, either party may terminate the part of agreement concerned with immediate effect by letter sent by registered mail, without the parties being liable to pay any compensation for damage to each other. If only part of the agreement is performed by SMT SERVICES, the Client shall owe a proportional part of the total price.
Except in the case of termination and if the work mentioned under section A. relates to equipment, SMT SERVICES shall examine the condition of the equipment after the suspension has ceased. The necessary maintenance as well as any repairs that may be necessary shall then be carried out by SMT SERVICES for the account of the Client after agreement has been reached on the cost entailed thereby, after which performance of the agreement shall be resumed. If one of the parties fails to fulfil its obligations towards the other party, or files a petition for a court-ordered moratorium, or is adjudicated bankrupt, then the other party shall have the right without any further notice of default being required, to cancel all agreements concluded with the one party in whole or in part by written notice, without prejudice to all other rights to which this other party is entitled by law.
Modifications of and additions to the agreement shall not have effect unless they have been laid down in writing.
Any work which does not fall under the description given under section A but which is done by SMT SERVICES pursuant to a separate verbal or written order from the Client, shall also be subject to these terms and conditions.
The agreement is governed by the law of Belgium.
Version : May 2018