Article 1 – General
These general conditions apply to all offers and agreements of Moonfish BV; hereafter “Moonfish”, with registered office at Oostereindestraat 1 3560 Lummen and with KBO no. BE 0785.616.559, unless specifically stipulated otherwise in writing.
The general terms and conditions apply to all activities the client can request from Moonfish. These activities can be sustainability reporting, carbon footprint calculation, study, engineering of energy, hydraulic and aerial techniques, delivery, installation and commissioning of products for energy monitoring, delivery of software services, etc.
Conditions of the client never apply, even if the client does not explicitly reject them.
These conditions also apply for additional works.
Article 2 – Changes
Moonfish has the right to change these terms and conditions unilaterally. Changes also apply to agreements already concluded. Changes take effect a month after publication by means of a written notice. If the client does not wish to accept the changes to the general terms and conditions, the client has the right to suspend the agreement by registered letter addressed to Moonfish within 5 days after the date on which the changes take effect. After the date of entry into force, the client is deemed to have tacitly accepted the changes.
Article 3 – Offers, quotations and orders
All offers presented by Moonfish are based on the information disclosed by the client. The client commits itself to present all essential information within a reasonable period of time as input for Moonfish to compose the best possible offer. All offers and quotations are subject to price changes.
Offers may not be communicated to third parties without the permission of Moonfish.
A valid agreement between the parties is only in affect if the offer is returned in form of an email approved and signed by the client and accepted by Moonfish. The conditions of the offer remain valid one month after the date of dispatch of the offer, unless stated otherwise. Any offer presented by Moonfish is without obligation.
Moonfish has the right, without any disclosure of cause, to revoke the offer within 3 working days after it has been accepted by the client
The contractor (Moonfish) can charge separately for additional work, performed by him, as soon as the amount to be charged is known to him. The works performed by the contractor during the execution of the agreement not specifically included in the activities expressly laid down in the contract or the order confirmation are considered additional works.
The costs for inspection by a recognized inspection body – if exceptionally applicable – are at the expense of the client.
Article 4 – Duration of the assignment
The execution of the assignment and delivery periods of the works and products are purely indicative, unless a formal delivery date is expressly stated in the agreement. The assignment starts from the moment that Moonfish is in possession of the necessary information, supplied by the client, for the realisation of the ordered works or the delivery of ordered products. If no delivery term or assignment duration has been agreed, Moonfish undertakes to deliver the works, products or assignment to the client within a reasonable duration.
The prolongation of any part of the assignment is to be determined in mutual agreement by both parties before the end date of the preceding contract.
The delivery period stated by the supplier (Moonfish) is indicative and without obligation, but the contractor will make every effort to observe them as accurately as possible. If the contractor exceeds the delivery term, for whatever reason, the client shall never have the right to compensation, dissolution of the agreement or non-fulfilment of his obligations. The commissioning of the goods, also partly, always means acceptance thereof, even if an anticipated acceptance test or formal delivery of the goods was not carried out. The risk for all direct and indirect damage passes to the client at the latest at full or partial commissioning by the client.
Article 5 – Contribution of both parties to the assignment
It is of interest to both parties that sharing of relevant information (such as knowledge and/or data on relevant historical events) throughout the execution of the assignment takes place in an efficient manner.
The client therefor commits itself to the supplier (Moonfish) to disclose all such information, also confidential if required to fulfil the assignment.
The client gives full access to the applicable locations in order for the supplier to fulfil the assignment in the best way possible.
In the case both parties have agreed on activities at the client’s location, the client must guarantee: to create a safe environment and provide the necessary safety measures with regard to the contractor of the supplier (Moonfish), in charge of the order. This entails at least:
1. The contractor (Moonfish or its subcontractors) can start their work on arrival at the place of installation and continue to perform during normal working hours
2. the roads giving access to the place of installation are suitable for the required transport
3. the place of installation is suitable for assembly and storage and that the necessary storing place for material, tools, etc. is available
4. the necessary and usual supplementary workers, auxiliary tools (such as scaffolding, ladders), accessory and business equipment (such as electricity, lighting, heating) and measuring and testing equipment, customary for the client’s company, are at the disposal of the contractor on time and free of charge
5. all necessary safety and precautionary measures have been taken and are maintained by the client
6. Inform the contractor (Moonfish or its subcontractors) about potential hazards and risks associated with the assignment
7. Where necessary, provide the foreman with the necessary training or instructions
8. Inform the contractor (Moonfish or its subcontractors) about required physical or medical requirements
9. Foresee specific materials and/or tools and PBM’s relevant to the execution of the assignment
Damages and costs arising from lack of fulfilment of the conditions set out in this article are at the expense of the client.
The client must contact the supplier for all problems with regards to the performed services, activities and the behaviour of the contractor of the supplier.
Article 6 – Suspending the agreement
The assignment can be suspended based on a valid written motivation addressed to the counterparty.
Any potential extra costs directly or indirectly resulting from the suspension of the assignment will be payable by the client as well as costs already incurred by the supplier.
In case of non-payment of due invoices or in case the client does not comply with the content of this agreement, the supplier has the right to consider the agreement as suspended. The supplier is consequently in no case liable for any form of compensation with respect to the client.
The deliverables and performed services are considered to be fully accepted by the client in the absence of a formal written addressed to the supplier within 8 calendar days after the presentation of the respective results, timesheets, report or other form of deliverable.
Article 7 – Agreements on possible conflicts
All agreements disclosed by Moonfish are subject to Belgian law. Any dispute regarding the provisions of the agreement shall be settled before the qualified court of the judicial district in Hasselt.
Article 8 – Confidentiality
The supplier (Moonfish) declares all confidential information – concerning the company of the client – secret and commits to endorse this by its executors if this is requested by the client.
The general knowledge and process knowhow shall remain in possession of the client only.
The client and Moonfish are obliged to guard reciprocal confidentiality of the contents of all documents and information that they entrust to each other in the context of the works.
Article 9 – Information and copyright
The client undertakes to provide Moonfish with all information (all available “as-built” information, including but not limited to plans, technical documentation, product information, previous equipment proposals, etc.) that the contractor requires or deems useful for the execution of the contract, and Moonfish undertakes to use the information exclusively for that purpose. Moonfish shall be allowed to charge the client any unnecessary or unreasonable delay in the delivery of this information when invoicing.
The person who signs the contract acting as “client”, irrespective of whether it acts on behalf of another person or company, shall be held personally liable towards Moonfish if the third party or company refuses to approve or execute the agreement.
All reports, drawings, software, programs, calculations, descriptions, models, tools and documents resulting from the assignment remain the (intellectual) property of Moonfish, even if costs have already been charged for it. The client may only make use of the knowledge and information made available to him after the full payment of Moonfish‘s invoices and within the boundaries of the specific assignment, subject to written and explicit deviation.
The copyright and all other intellectual or industrial property rights on all software, analyses, designs, documentation, reports, offers, as well as preparatory material thereof, rest exclusively property of Moonfish or its licensers.
The client only receives a non-exclusive, non-transferable right of use and powers that are explicitly granted to him. The client shall not multiply any materials part of Moonfish’ deliverable or make copies thereof, except for permitted back-up purposes or explicit deviations are part of the agreement.
Moonfish is not liable for costs, damages and interests which may arise as a direct or indirect consequence of infringement of patents, licenses or other rights of third parties as a result of the use of data provided by or on behalf of the client.
Article 10 – Liability
1. Insofar as the supplier (Moonfish) is dependent on the cooperation, services and deliveries of third parties in his activities, the supplier (Moonfish) cannot in any way be held liable for any damage whatsoever arising from these relations or the breaking thereof, irrespective of whether the damage occurs or becomes visible during the relationship with the supplier (Moonfish).
2. Moonfish is not liable for the damages resulting from deficiencies or shortcomings in installation, equipment or software that is manufactured by parties other than the supplier (Moonfish), including the package software supplied by the contractor or software packages, software components or runtime facilities of third parties.
3. If the supplier (Moonfish) is acknowledged liable for damages of the client, his liability shall be limited to compensation for the replacement of the damaged goods up to maximum the amount stipulated on the agreement (excluding VAT). If the agreement is mainly a continuing performance contract with a duration term of more than 6 months, the stipulated price is set at the total of the fees (excluding VAT) for 6 months. Any liability of the supplier (Moonfish) for any other form of damage is excluded, including additional compensation in any form whatsoever, compensation for indirect damage, consequential loss or damage due to lost turnover or profit.
4. The client guarantees the correctness of the content of the text and data supplied by him or other materials made available
Delivered goods and equipment
Claims with regards to the visible defects concerning the quality and conformity of the delivered goods must take place during inspection and at the latest within 5 days after delivery of the goods. If this deadline is exceeded, every claim on the supplier (Moonfish) regarding these visible defects shall expire.
All work and assignments carried out by the supplier (Moonfish) involve a commitment of means. This means that Moonfish carries out the mission entrusted with the skills, independence, discretion and precision that can be expected from a specialist. Moonfish therefore ensures that the appointees or bodies that perform the assignment have the necessary knowledge and professional skills.
Moonfish is only responsible for the works, studies, projects or goods that are realized or delivered by it or under its management and supervision. Moonfish liability is limited to the repair of foreseeable, direct and personal damage, excluding any indirect or immaterial damage such as, but not limited to, loss of earnings and profits, loss of commission, loss or damage of data, loss of contracts and supplementary cost. In all cases, liability is limited to the amount for which Moonfish is insured.
Each case of force majeure automatically frees Moonfish from any obligation without claiming compensation. In the event that Moonfish depends on deliveries from third parties, the aforementioned provisions are also applicable in case of force majeure or casualty. Accidents, breakdown, exceptional traffic, exceptional climatic conditions, strikes or lock-outs, etc. are considered cases of force majeure.
With regard to conditions and liabilities for software licences and services, Moonfish does not take over any form of liability from the software supplier. Moonfish can never be held liable for direct or indirect damages, problems, defects or shortcomings related to or caused by software products manufactured by third parties, even if the client purchased this software via Moonfish, but only made use of it. The client declares that Moonfish shall never be held liable in this respect, but that it shall place the responsibility with the respective software manufacturers of the product concerned.
Article 11 – Billing and payment
The services and products are invoiced to the client as stipulated in the commercial offer. A revised offer will be issued to the client in the event of a deviation from the proposed work packages. The invoices of Moonfish are payable at the registered office within 14 days of receipt of the invoice, unless otherwise agreed in writing. The prices are calculated on the basis of the daily price of raw materials, wages and social security charges. The client gives permission to Moonfish to send the invoices electronically.
No delay in payment can be considered, not even under the pretext that the Customer himself would not be paid by the services of the government or by third parties, for whatever reason.
The invoices that are not paid after the due date are automatically and without prior notice subject to a conventional interest of 12% and a 12% penalty clause with a minimum of 250,00 euro, without prejudice to the right to claim a higher fee provided evidence of higher actual damage.
In the event of non-payment on the due date, Moonfish reserves the right to either suspend the execution of its obligations without prior notice or to terminate the agreement by law and without prior notice or judicial intervention, for the whole or the remainder of the agreement.
If the client does not fulfil his payment obligations towards the contractor or fails to do so on time, the contractor shall, without prejudice to the other rights to which he is entitled, be irrevocably authorized by the client to, on first claim, disassemble and appropriate of the movable or immovable property delivered by him, without any notice of default or judicial intervention and under reserve of the right to compensation for all damages resulting therefrom.