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1.1. Azulatis: NV Azulatis, with registered office at Oudenaardse heerweg 72, 8540 Deerlijk, Belgium and with company number 0795.326.754.
1.2. Client: the company that has entered into the Agreement with Azulatis.
1.3. Agreement: the agreement concluded between Azulatis and the Client of which these General Terms and Conditions form an integral part, as well as any written amendment thereto.
1.4. General Terms and Conditions: these general terms and conditions.
1.5. Service: the products and services described in the Agreement as provided by Azulatis under the Agreement.
1.6. Raw Water: the water supplied by the Client and treated in the Installation.
1.7. Process Water: the water treated in the Installation and supplied by Azulatis to the Client.
1.8. Installation: the installation to be designed, built, pre-financed, operated and/or maintained by Azulatis.
1.9. Building: the building in which the Installation is located.
1.10. DBFMO: the situation in which the Service of Azulatis includes the design, build, pre-financing, operation and maintenance of the Installation and, where applicable, the Building.
1.11. DBMO: the situation in which the Service of Azulatis includes the design, build, operation and maintenance of the Installation and, where applicable, the Building.
1.12. DB: the situation in which the Service of Azulatis includes the design and build of the Installation and, where applicable, the Building.
1.13. Takeover Price: in the case of DBFMO, the fee payable by the Client for the takeover of the Installation and, where applicable, the Building as determined in the Agreement.
1.14. Supply Interruption: the temporary unavailability or insufficient availability of Process Water from the Installation in accordance with the quantity provided for in the Agreement.
2.1. These General Terms and Conditions apply to every offer of Azulatis and to all agreements between Azulatis and the Client, including the Agreement. The Client declares to have been sufficiently informed about the characteristics of the Service of Azulatis and acknowledges having received, read and accepted these General Terms and Conditions at the latest at the time of concluding the Agreement. The Client guarantees that all its employees, appointees and any subcontractors undertake the same obligations as those included in these General Terms and Conditions.
2.2. All prior oral or written agreements or communications relating to the Service of Azulatis or the Agreement are replaced by the Agreement.
2.3. Each party declares and warrants that it has all necessary rights, powers and authority to validly conclude the Agreement and to grant or assume the rights and obligations contained therein.
3.1. The fees payable by the Client are set out in the Agreement. Prices are stated in euros and exclude VAT. VAT and all other duties, levies, taxes, payment costs and/or exchange costs are payable by the Client (including all taxes, levies and other charges relating to the Installation and/or the Building).
3.2. In the case of DBFMO, and unless otherwise agreed, Azulatis shall invoice the Client monthly during the design and build phase as from the signing of the Agreement, based on the management fee stated in the Agreement. The management fee paid during this phase shall be deducted from the fee payable during the operation and maintenance phase. During the operation and maintenance phase, Azulatis shall invoice the Client monthly as from the supply of Process Water at the unit price stated in the Agreement. Costs not included in the management fee and unit price shall be included in the monthly invoicing.
3.3. In the case of DBMO, and unless otherwise agreed, Azulatis shall invoice the Client during the design and build phase as from the signing of the Agreement for the price of the Installation and/or the Building in accordance with the Agreement. Upon final settlement, any additional or reduced costs shall be invoiced/credited. During operation and maintenance, Azulatis shall invoice monthly at the unit price. Additional costs shall be included in the monthly invoicing.
3.4. In the case of DB, Azulatis shall invoice the Client as from the signing of the Agreement in accordance with the Agreement. Upon final settlement, any additional or reduced costs shall be invoiced/credited.
3.5. All payments shall be made without discount, deduction or set-off to the account of Azulatis within thirty (30) days after the invoice date.
3.6. After thirty (30) days past due, late payment interest shall be due automatically and without notice at the rate provided by the Act of 2 August 2002. After sixty (60) days past due and fifteen (15) days after notice of default, Azulatis may suspend or terminate the Service.
3.7. If charges or taxes are included in the price, the price shall be adjusted in case of changes thereto.
3.8. Azulatis may unilaterally adjust prices to reflect cost increases due to raw materials, labour, regulations, site-specific factors, or other objective factors. Changes take effect after thirty (30) days unless stated otherwise.
4.1. Azulatis shall make reasonable efforts to meet deadlines, which are indicative only and may change due to delays or permits.
5.1. The Client is responsible for obtaining permits and shall provide necessary information. Azulatis provides assistance but no guarantee.
5.2. Third parties for permits are under full responsibility of the Client.
5.3. This also applies to additional permits during the Agreement.
5.4. The Client shall indemnify Azulatis for disputes and damages related to permits or compliance.
6.1. The Client shall comply with employee welfare laws and:
6.2. Azulatis shall prepare the commissioning report.
7.1. The Client grants access to the Installation and Building.
7.2. Only authorised persons may enter.
7.3. Non-essential access is by mutual agreement.
7.4. Azulatis may replace meters.
8.1. Not attributable to Azulatis include:
maintenance works.
9.1. Azulatis may suspend the Service for breach.
9.2. Only if justified.
9.3. Resumption after remedy and payment.
10.1. The Client bears additional costs.
10.2. Includes regulatory, technical or environmental changes.
10.3. The Client indemnifies Azulatis.
11.1. The Contract enters into force on the date it is signed by both parties and is concluded for the fixed term specified in the Contract.
11.2. The parties shall have the right to terminate the Contract with immediate effect and without prior judicial intervention by registered letter addressed to the other party, if that other party is subject to (an application for) liquidation, bankruptcy, suspension of payments, or if the party concerned meets the conditions for bankruptcy.
11.3. The remedies provided for in article 5.93, article 5.90, §2 and article 5.239, §2 of the Civil Code are expressly excluded for the Client.
11.4. After the expiry of a period of three (3) years from the signing of the completion certificate, and provided that the Client has fulfilled all obligations and paid all fees due in accordance with the Contract, the Client shall have an annual right of termination. This right of termination shall be subject to the following conditions:
11.5. If, after the signing of the Contract, it appears that construction of the Installation and/or the Building cannot be commenced due to circumstances not attributable to any fault on the part of Azulatis (such as, inter alia, the failure to obtain a permit or insufficient availability of Raw Water), and unless the parties agree otherwise, the Contract shall terminate prematurely thirty (30) days after written confirmation by both parties of the circumstance necessitating such termination.
11.6. In the event of termination of the Contract, Azulatis shall be entitled to payment of all fees and all costs relating to the Service provided in accordance with the Contract, including the costs to be incurred as a result of the termination (including, where applicable, the costs of dismantling the Installation and/or the Building).
12.1. At any time during the term of the Contract, the Client may request by registered letter that Azulatis transfer ownership of the Installation and, where applicable, the Building, subject to payment by the Client of the Takeover Price applicable at that time, provided that Azulatis expressly accepts such takeover.
12.2. In the event of termination or dissolution of the Contract, for whatever reason, the Client shall pay the Takeover Price applicable at that time as provided for in the Contract.
12.3. In the absence of payment of the Takeover Price by the Client, Azulatis shall, in the event of termination or dissolution of the Contract, be entitled to dismantle and remove the Installation and, where applicable, the Building from the Client’s site. If the Client was obliged under the Contract to pay the Takeover Price, such dismantling by Azulatis shall in no way affect Azulatis’ right to claim full payment of the Takeover Price as well as any additional damages.
12.4. At least one (1) year before expiry of the fixed term of the Contract, the parties may in good faith initiate discussions regarding a possible renewal or extension of the Contract and the corresponding amounts of the Takeover Price.
13.1. If, in the case of DB and DBMO, the Installation supplied by Azulatis shows defects within a period of two (2) years from the signing of the completion certificate, and such defects result directly from the use of defective materials or defective installation by Azulatis, such defects shall be repaired or replaced by Azulatis, at Azulatis’ discretion. To the extent permitted by law, Azulatis shall no longer be liable for such defects after this period.
13.2. To the extent permitted by law, in the case of DBFMO, after the transfer of ownership of the Installation, Azulatis shall only be bound by the warranty for hidden defects as provided for in articles 1641 et seq. of the (former) Civil Code. The Client is obliged to notify Azulatis of any hidden defect relating to the Installation by registered letter within ten (10) business days after discovering it, and to notify Azulatis of any claim based on hidden defects by registered letter within twelve (12) months following the date of transfer of ownership. Failing this, no action shall be taken on a claim based on hidden defects.
13.3. The foregoing provisions shall also apply in the event of design and construction of the Building, unless mandatory legal provisions provide otherwise.
13.4. Azulatis shall in no event be liable for a defect:
13.5. Unless otherwise agreed, repairs of defects affecting the Installation and the Building that are not attributable to Azulatis shall be carried out by Azulatis, and the associated costs shall be borne by the Client. Azulatis shall inform the Client at least five (5) business days in advance of the time and probable duration of repairs or maintenance work, except in urgent cases. Azulatis is not obliged to carry out maintenance and repair work that is not relevant to the proper functioning of the Installation or the Building.
14.1. Unless mandatory legal provisions provide otherwise and except in cases of wilful misconduct or fraud, Azulatis’ liability, regardless of its cause and whether the claim is contractual or extra-contractual in nature, shall be limited to the foreseeable, direct and personal damage of the Client, to the exclusion of all indirect, immaterial and/or consequential damage, such as, without limitation, loss of production, loss of turnover, loss of profit, loss of customers or contracts, loss of data, fines, loss of opportunity or goodwill, damage to reputation or moral damage, damage resulting from obligations assumed by one party towards third parties, and third-party claims. Azulatis’ liability shall in any event be limited to:
it being understood that for both (i) and (ii), the maximum is the amount paid to Azulatis by the insurance company in respect of the relevant damaging event.
14.2. Azulatis shall only be liable if and to the extent that the damage is notified to it in writing within fifteen (15) calendar days following the moment the Client became aware of it. Any late notification shall result in forfeiture of the Client’s right to compensation.
14.3. Azulatis shall only be liable for damage caused by its fault or by the fault of its employees or subcontractors. In particular, Azulatis shall not be liable:
14.4. Azulatis’ auxiliary persons (including, inter alia, Azulatis’ directors and employees) may not be held liable on an extra-contractual basis in connection with the performance of the Contract. The Client must, where applicable, direct its claim against Azulatis and never against Azulatis’ auxiliary persons.
14.5. This article 14 shall remain applicable after the end of the Contract.
15.1. The parties shall take all possible protective measures in order to prevent and limit damage, whatever its form or extent, and shall take out the necessary insurance policies to cover their obligations and liability under the Contract. At the first request of the other party, proof of insurance shall be provided.
16.1. Azulatis may, for whatever reason, both before conclusion of the Contract and during the term thereof, request a guarantee or other security from the Client or from a company affiliated with the Client.
16.2. If the guarantee is not provided or the security is not constituted within thirty (30) days following the request to that effect, Azulatis reserves the right to suspend, dissolve or terminate the Contract without being liable for any compensation whatsoever.
17.1. All drawings, calculations, technical and other information, as well as know-how, in whatever form, originating from one of the parties and obtained by the other party, directly or indirectly, in writing or orally, in connection with the Contract, shall be deemed confidential information. Neither party shall use or allow the use of such information of the other party for commercial purposes.
17.2. The receiving party undertakes to treat such information as confidential and not to disclose, reproduce, modify, use, multiply or communicate it to third parties, except where this is necessary for the proper performance of the Contract, nor to allow it to be used for purposes other than those for which it was disclosed. Each party undertakes to impose the same confidentiality obligation on its employees.
17.3. This obligation shall remain applicable for ten (10) years after termination of the Contract.
Performance of the Contract shall be suspended in whole or in part if and to the extent that one of the parties is unable to fulfil its obligations due to force majeure. The other party shall be released from the performance of its corresponding obligations and shall not be considered in default with respect to such obligation under the Contract.
18.1. The following shall in particular, without limitation, constitute force majeure: natural disasters, pandemics, blockades, economic crises, cyberattacks, strikes, changes in regulations or legislation, technological developments, terrorism, riots, war or geopolitical tensions, and acts of a public authority preventing performance of this Contract or rendering it unlawful.
18.2. In the event of force majeure, the party invoking it must inform the other party in writing, as soon as possible, of the events or circumstances constituting the force majeure event, as well as of its concrete impact and consequences on the performance of the Contract.
18.3. The party intending to rely on force majeure must take all reasonably necessary measures to limit the consequences and duration of such impediment for the other party.
18.4. The Client expressly acknowledges that invocation of force majeure is excluded in the event of excessively high or low water level, pressure and/or flow rate of the Raw Water source, as well as for other reasons causing Raw Water not to meet the parameters of the Contract. In order to prevent such situations, the Client must provide an alternative supply of Raw Water (for example through the public water distribution network).
19.1. If, after conclusion of the Contract, unforeseen circumstances arise and render the performance of Azulatis’ obligations substantially more difficult, Azulatis may request the Client to enter into consultations in order to agree on an amendment to the terms of the Contract. The Client shall have fifteen (15) days to respond and formulate its comments. Amendments to the Contract shall be recorded in an addendum to the Contract.
19.2. If no agreement is reached within a period of sixty (60) days from Azulatis’ request, Azulatis shall be entitled to terminate the Contract without owing any compensation whatsoever.
20.1. Unless otherwise provided, all remarks, objections or complaints must, under penalty of nullity, be brought to the attention of Azulatis in writing within eight (8) days following the findings or the facts, failing which they shall not be taken into consideration.
20.2. Complaints relating to the invoice must be submitted within the original payment term.
21.1. Azulatis is and shall at all times remain the owner of all intellectual property rights relating to the plans, drawings, calculations, technical and other information, or know-how relating to the Service (including the Installation and the Building supplied by Azulatis, as well as other installations or equipment). In the event of transfer of ownership of installations or equipment, Azulatis shall provide the Client with the documentation necessary for the proper functioning and/or maintenance of the relevant installation or equipment. In such case, Azulatis grants the Client a non-exclusive and non-transferable right of use in respect of such documentation for the lifetime of the installation or equipment, and solely for the purpose of the proper functioning and/or maintenance of the relevant installation or equipment. The documentation may not be copied or communicated to third parties without Azulatis’ prior written consent and may under no circumstances be used for commercial purposes.
21.2. During the term of the Contract, Azulatis shall have the right to use the Client’s logo, trademark and trade name for commercial purposes.
22.1. The parties undertake to comply with the applicable legislation on the protection of personal data, including Regulation (EU) 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data, and repealing Directive 95/46/EC.
23.1. If, under the applicable legislation or regulations, the Client is required to notify the competent authority or authorities of any deviation from or non-compliance with statutory or regulatory parametric values, the Client shall, for that purpose and as soon as possible, take the necessary measures to comply with such notification obligation(s). The Client shall be solely responsible for verifying the existence of a notification obligation in the given circumstances and the measures required in that regard, and shall inform Azulatis without delay of the measures taken by it.
23.2. Unless the applicable legislation and regulations impose a notification obligation on Azulatis, Azulatis shall not make any notification to the competent authority or authorities. The Client shall fully indemnify Azulatis against any damage resulting from non-compliance with the obligations incumbent upon it in this respect.
24.1. The Client is not authorized to assign to third parties the rights or obligations arising from the Contract without Azulatis’ prior written consent.
24.2. The Client acknowledges that the Contract shall remain in force if Azulatis’ legal form is converted into another legal form and that Azulatis is authorized to assign the Contract to an affiliated company or to a third party without needing the Client’s consent.
25.1. The invalidity, nullity or unenforceability of one or more provisions of the Contract shall not affect the validity and enforceability of the other provisions of the Contract.
25.2. The parties shall, where appropriate, in good faith draw up one or more new provisions aimed at achieving the purpose pursued by the invalid, null or unenforceable provision.
26.1. All communications in connection with the Contract shall be made in writing in the Dutch language and sent by registered mail, ordinary mail or e-mail, to the addresses set out in the Contract.
26.2. The aforementioned contact details may be changed by the parties subject to prior written notice, such changes taking effect seven (7) calendar days after the date of the notice. If no new details are communicated in the event of a change of address, merger, demerger, acquisition, and other similar situations, any communication shall validly be made to the last known address.
27.1. The Contract shall be governed exclusively by Belgian law.
27.2. In the event of a dispute arising out of or in connection with the Contract, the parties shall preferably seek an amicable settlement. The most diligent party shall inform the other party by registered letter of the existence, in its opinion, of a dispute, after which consultations shall be initiated between the two parties. If no amicable settlement can be reached within two (2) months following the aforementioned registered letter, the most diligent party may bring the dispute before the Dutch-speaking courts of Brussels, which shall have exclusive jurisdiction to hear disputes arising in connection with the Contract, unless mandatory law provides otherwise.ls.
Stay up to date with the latest from Azulatis. Read our news articles on our website or subscribe to our newsletter.