GENERAL TERMS AND CONDITIONS
(this is a free translation of the French version that is the original document prevailing in any cases)
I. GENERAL SECTION
These general terms and conditions define the obligations of the contracting parties for the provision of all services, principal and accessory, present or future, by Luxcontrol. Unless there is an express derogation signed by Luxcontrol, the present general terms and conditions apply exclusive of any other condition issued by the other contracting party, even if this party specifies that it becomes part of the contract only under its own conditions, which may feature on its order confirmation or on any other document.
If the customer (hereinafter the "contracting party") is a consumer within the meaning of the Luxembourg Consumer Code, Section II shall also apply. It shall prevail over Section I in case of contradiction with the provisions of Section I.
Until written confirmation of an order or a service contract by Luxcontrol, offers made by Luxcontrol are not binding, specifically as to volume of the work, terms of execution, prices and time limits.
3. PROVISION OF SERVICES
The volume of the services is specified in a joint declaration by the contracting parties. In the absence of such a declaration, the written confirmation of order issued by Luxcontrol shall prevail. If the volume of the order is not specified in writing at the moment the order is given, the invoicing will be based on the applicable price lists of Luxcontrol for the work provided. Orders will be executed in accordance with sound scientific and technological practices, taking into consideration the applicable requirements and using the common procedures of Luxcontrol.
When executing an order in the manner described in the previous paragraph, no guarantee will be given as to the correct state or functioning of the objects under inspection or survey or of the complete installation; in particular Luxcontrol cannot be held liable for the construction, the choice of materials and the assembly of the installations under inspection, insofar as these elements are not part of the order. As to inspection and verification contracts to be carried out by Luxcontrol, the company cannot be held responsible for the conformity or the verification of the safety programs or the basic safety regulations, unless this is expressly specified otherwise in writing. If for any reason not attributable to Luxcontrol additional services and expenses are necessary, these will be charged and invoiced to the contracting party. These are in particular: immobilization of staff or material, provision of services due to modifications of the order or resulting from rejects or defects, additional services or research deemed indispensable to guarantee absolute continuity of the execution of the order as well as any hour of service provided outside normal working hours.
4. TIME LIMITS
The agreed time limits for the execution of the order are based on estimations of the volume of work on the basis of the information provided by the contracting party. Time limits are indicative, unless expressly agreed otherwise in writing between the contracting party and Luxcontrol. Delays in the execution of the order, for whatever reason, do not carry the right to claim any damages and interests.
The contracting party guarantees that all actions on his part that accompany either directly or via third parties the work of Luxcontrol are provided free of charge. Plans, means and personnel necessary for the execution of the order will be provided free of charge. Any intervention by the contracting party has to be in conformity with the laws, standards, safety requirements and accident prevention rules. Additional costs that are incurred due to late, incorrect or incomplete information or due to a lack of assistance by the contracting party or a third party, which lead to work having to be repeated or to delays, will be charged to the contracting party. This also applies to orders for which fixed or maximum prices have been agreed.
The contracting parties commit to observe absolute discretion concerning all confidential information communicated to them within the context of an order. They undertake to ensure that their employees or service providers, subcontractors or co-contractors, should their intervention be required, will observe the same absolute discretion.
Confidential information is information that is not normally known to third parties and is not in the public domain at the time of the order.
However, if the applicable laws of Luxembourg provide that in the course of regulatory inspections certain information has to be divulged to the competent authorities, Luxcontrol can in no case evade complying with this obligation. Written documents that are provided to Luxcontrol and that are necessary for the execution of the order may be reproduced for the records of Luxcontrol, shared with legal entities directly or indirectly affiliated to Luxcontrol and with external partners such as subcontractors or co-contractors.
Luxcontrol is committed to the respect of confidentiality by its affiliates, subcontractors or co-contractors.
Confidential information will be kept by Luxcontrol until the expiration of the legal warranty periods and in case of litigation until the final end of the litigation.
Luxcontrol shall always have the right to keep a copy of the documents constituting the basis of Luxcontrol's services.
Any copyright or joint copyright on expert reports, studies, results, calculations, graphics, training material, etc. drawn up by Luxcontrol within the context of an order remains the property of Luxcontrol. The contracting party is obliged to limit the use of expert reports, studies, results, calculations, graphics, training material, etc. (together the “services”) to the sole purpose stated in the contract.
INVOICING AND PAYMENT CONDITIONS
Prices for the provision of services will be established following the price lists of Luxcontrol applicable at the time of provision of the services or on the basis of a total amount fixed in advance. Luxcontrol may ask for one or several down-payments before the beginning of the work. Luxcontrol also has the right to issue partial invoices subject to progress of the work. Luxcontrol can choose to issue partial invoices for fixed-price orders. The present payment conditions may be modified by common agreement of the parties. Payment conditions derogating from these conditions can only be invoked against Luxcontrol if they are expressly stated in the written confirmation of order issued by Luxcontrol. If, during the execution of an order, a modification of costs occurs due to a change in salaries and/or reduction of working hours with salary compensation according to the provisions of the collective agreement or following a variation of the cost of living index, the price lists of Luxcontrol will be adjusted by rights according to the new cost situation. Consequently, the new price lists will be applicable for the services being provided after the date of application of the rise and will form the basis of our invoicing. For the provision of services outside normal working hours, a surcharge will be added to the hourly price of Luxcontrol following the legal provisions or the collective agreement. At present, the following surcharges apply: 25% between 7.00 p.m. and 7.00 a.m., 50% for overtime, 50% for work on Saturdays, 70% for work on Sundays and 100% for work on public holidays. Invoices issued by Luxcontrol are payable in full, without discount, on receipt of the invoice. Non-compliance with payment deadlines will lead to the charging of legal interest, without prior notice, in accordance with the terms of the amended law of April 18, 2004 concerning the payment terms and interest on arrears. Any complaint has to be lodged in writing within two (2) weeks of the date of dispatch of the invoice. After this time limit, the invoice is deemed definitively accepted. Justified complaints will be accepted and settled after payment of the invoice. The contracting party may only pay his debt by setting-off if the contracting party’s claim is recognized by Luxcontrol or legally established. The contracting party may not deduct any part of the total amount invoiced by Luxcontrol nor exercise a right of retention on any property of Luxcontrol.
Any claim must be made within two (2) weeks after the end of Luxcontrol's interventions and must be sent to Luxcontrol by registered letter with acknowledgment of receipt.
The liability of Luxcontrol is limited to ten (10) times the value of the fees for the technical service alone being the basis of the damage caused within the framework of a contract. In any event, Luxcontrol's liability is limited to a maximum amount of 2,500,000 Euros for all damages caused within the framework of the contractual relationship with the contracting party. Any extension of this liability is excluded, except in cases of deliberate damage or extreme negligence. The liability limit applicable to Luxcontrol is also applicable to the staff members and representatives of Luxcontrol. Luxcontrol is not liable for the personnel put at its disposition by the contracting party to assist with an inspection or the monitoring of an installation or equipment used by the contracting party, except if this personnel is deemed to be under the orders of Luxcontrol. Insofar as Luxcontrol is – according to the previous sentence – not liable for the personnel put at its disposition, the contracting party has to exempt Luxcontrol from any claims from third parties and to hold Luxcontrol harmless. Under penalty of conventional prescription and forfeiture, any action by a contracting party against Luxcontrol must be brought within a period of two (2) years from the occurrence of the damage.
10. PERSONAL DATA PROTECTION
Luxcontrol provides its services in accordance with the current legislation on data protection. Only personal data necessary for carrying out our services are processed. Appropriate technical and organizational measures have been implemented in order to ensure the respect of the rights of the data subjects. Luxcontrol's commitments in terms of data protection and the rights of the contracting parties are described in the "Personal Data Protection Charter" available on the web page www.luxcontrol.com.
The contracting party consents to the processing of personal data and those of its employees or other service providers, necessary for Luxcontrol to perform its services.
11. FORCE MAJEURE
"Force Majeure" means the occurrence of an event or circumstance that prevents or impedes a party from performing one or more of its contractual obligations under the contract, if and to the extent that such party proves: (a) that such impediment is beyond its reasonable control; and (b) that it could not reasonably have been foreseen at the time of the conclusion of the contract; and (c) that the effects of the impediment could not reasonably have be avoided or overcome by the affected party.
In the absence of proof to the contrary, the following events affecting a party shall be presumed to satisfy conditions (a) and (b) of this clause: (i) war (whether declared or undeclared), hostilities, invasion, act of foreign enemies, extensive military mobilization; (ii) civil war, riot, rebellion and revolution, military or usurped power, insurrection, act of terrorism, sabotage or piracy; (iii) currency and trade restriction, embargo, sanction; (iv) act of an authority, whether lawful or unlawful, compliance with any law or governmental order, expropriation, seizure of works, requisition, nationalization; (v) plague, epidemic, natural disaster or extreme natural event; (vi) explosion, fire, destruction of equipment, prolonged break-down of transport, telecommunication, information system or energy; (vii) general labor disturbance such as boycott, strike and lockout, go-slow, occupation of factories and premises.
The party successfully invoking this clause shall be released from its duty to perform its obligations under the contract and from any liability in damages or from any other contractual remedy for breach of contract, from the time the impediment causes inability to perform, provided that notice is given without delay to the other party. If notice is not given without delay, the relief is effective from the time the notice reaches the other party. Where the effect of the impediment or event of force majeure invoked is temporary, the above consequences shall only apply as long as the impediment invoked hinders performance by the affected party. Where the duration of the impediment invoked has the effect of substantially depriving the contracting parties of what they were reasonably entitled to expect under the contract, either party has the right to terminate the contract without compensation by notification within a reasonable period of time to the other party. Unless otherwise agreed, the parties expressly agree that the contract may be terminated by either party without compensation if the duration of the impediment exceeds 120 (one hundred twenty) days. Each party shall bear all costs incurred as a result of the occurrence of the “force majeure” event.
The parties are bound to perform their contractual duties even if events have rendered performance more onerous than could reasonably have been anticipated at the time of the conclusion of the contract.
However, as an exception to the foregoing paragraph, if a party proves that:
- a) the performance of its contractual duties becomes excessively onerous due to an event beyond its reasonable control and which could not be reasonably have been anticipated at the time of conclusion of the contract and
- b) it could not reasonably avoid the event or its consequences,
the contracting parties are bound, within a reasonable period of time of the invocation of this clause by registered letter by one of the parties, to negotiate contractual conditions which can overcome the excessively onerous consequences. If the parties fail to reach an agreement, the party invoking this clause is entitled to terminate the contract. However, the party invoking this clause is not entitled to request a judge or arbitrator to adjust the contract, unless the other party agrees in writing.
The hardship clause must be invoked, under penalty of contractual prescription or forfeiture, by registered letter within one month of the occurrence of the event that gave rise to the hardship.
13.1 Audit and certification requirements
Where applicable, the audit and certification conditions of Luxcontrol, which the contracting party declares to know and to have accepted, are also applicable.
13.2 Export Controls
In case of transmission of services provided by Luxcontrol abroad, the contracting party undertakes to comply with the applicable provisions of national and international law on export control.
The execution of the contract with the contracting party is subject to the condition that there are no obstacles related to compliance with national or international legislation on foreign trade or to embargoes and/or sanctions.
In general, the affixing of the accreditation mark on a test or inspection report does not constitute approval of the product by the Luxembourg national accreditation body. The contracting party is not authorized to affix the accreditation mark to the object inspected or to any other document.
13.4 Agreement of the contracting party
The contracting party agrees that Luxcontrol may store data and information concerning the business relationship on a computer for its own use.
The lapse and/or nullity of one or more contractual clauses does not release the contracting party from its obligation to perform all the other clauses of the contract.
13.6 Changes to the General Terms and Conditions
Luxcontrol has the right to unilaterally modify its general terms and conditions at any time.
13.7 Applicable law and jurisdiction
The relationship between Luxcontrol and the contracting party is exclusively governed by Luxembourg law, to the exclusion of international private law and the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980.
The courts of the Grand-Duchy of Luxembourg are exclusively competent to hear any dispute between the contracting party and Luxcontrol.
II. GENERAL TERMS AND CONDITIONS SPECIFICALLY APPLICABLE TO CONSUMERS
For consumers within the meaning of the Consumer Code, the following provisions shall apply. They take precedence over Section I insofar as they deviate from it.
1. Requests from potential contracting parties via electronic means of communication addressed to Luxcontrol are not binding on the latter. In case of interest, Luxcontrol will send to the contracting party an offer by mail, fax or e-mail containing the details of the contracting party's request including prices, total price, additional costs, as well as the contractual terms (special conditions and general conditions). Luxcontrol is not obliged to submit an offer. Upon receipt of the acceptance of the offer by Luxcontrol, the contract is concluded. However, if the offer of Luxcontrol is expressly designated as subject to confirmation or non-binding, the contract is only concluded with the contracting party upon confirmation of the order by Luxcontrol.
Luxcontrol will send the contracting party a confirmation of the contract after its conclusion by letter, fax or e-mail.
2. Where applicable, the lump sum prices specified in the offer are inclusive of all taxes.
3. The consumer contracting party has the right to withdraw from the contract within fourteen (14) calendar days without giving any reason. The period of withdrawal starts from the conclusion of the contract. In order to exercise his right of withdrawal, the consumer contracting party must inform Luxcontrol in a clear statement by letter, fax or e-mail of his decision to withdraw. It is sufficient that the contracting party has sent the withdrawal before the expiration of the withdrawal period for it to be effective.
4. Luxcontrol will reimburse the contracting party to the contract for any payment received by the latter via the same method of payment as that used by the contracting party, unless otherwise mutually agreed.
In case the contracting party has requested the performance of the services during the withdrawal period, the contracting party undertakes to pay Luxcontrol an appropriate amount corresponding to the proportion of the services already performed at the time of notification of the right of withdrawal.
The revocation form that can be used is to be sent to the attention of Luxcontrol, 1, avenue des Terres Rouges, L-4330 Esch-sur-Alzette, Fax: (+352) 54.79.30, Email: email@example.com.
« name of the consumer,
address of the consumer,
I/We hereby withdraw from the contract concluded with you on (date) ... for the following services (to be listed): ..., ordered on (date) ...., offer no. (put number) ... or order no. ...(put number),
signature of the consumer, if on paper or fax ".
5. The contracting party will lose his right of withdrawal from the services if Luxcontrol has performed the services during the withdrawal period, provided that Luxcontrol has started to perform the services after the consumer has given his express consent and confirmed that he will lose his right of withdrawal upon performance of the contract by Luxcontrol.
Esch-sur-Alzette, on January 16th 2023