1.1. These General Terms and Conditions form part of any agreement between Atalian SA (with registered office in 1070 Anderlecht, Internationalelaan 55F, registered with the Crossroads Bank for Enterprises under number 0453.203.301, hereinafter “ATALIAN”) and its clients (hereinafter “Client(s)”), concerning the provision by ATALIAN of services or works. The application of these General Terms and Conditions is decisive for ATALIAN to contract. The conditions applied by the Client are hereby expressly excluded, unless otherwise agreed in writing.
1.2. Should one or more of the Terms and Conditions or part thereof not be valid or should an express deviation from them be permitted, this shall not affect the validity and applicability of the other Terms and Conditions.
1.3. Modifications and amendments to the present general terms and conditions shall enter into force immediately upon their notification to the Client. They will be published on the website www.atalian.be.
- Duration and termination of the agreement
2.1. Unless otherwise expressly agreed, the agreement between ATALIAN and the Client is concluded for an unlimited period. Each party may terminate the agreement annually by registered letter no later than six months before the anniversary of the agreement.
2.2. In the case of an agreement of fixed duration, each party may terminate the agreement by registered letter at the latest six months before the end date of the agreement. In the absence of a valid termination of the agreement by registered letter six months before the anniversary date of the agreement, the agreement shall be tacitly renewed for successive periods of one year.
2.3. The anniversary date of the agreement refers to the starting date of the agreement and not to the date of signing the agreement.
2.4. A cancellation or early termination by the Client of the order or part of the order must be made in writing. In this case, the Client must pay ATALIAN a compensation equal to the amount provided during the agreed notice period or, in the case of a fixed term contract, until the end of this period. The amount of compensation shall be calculated based on the average of the price for the services owed to ATALIAN during the last three months prior to the cancellation or early termination. If the assignment lasted less than three months, the compensation shall be calculated on the basis of the average price that would have been paid during that period prior to the cancellation or early termination.
2.5. ATALIAN may, without prejudice to its other rights or remedies, suspend or terminate this Agreement, at its discretion, with immediate effect by written notice to the Client if the Client is in material breach of the Agreement (being a single event or a series of events which together amount to a material breach) which:
– is capable of being cured and (a) following notice from ATALIAN requiring the Client to cure the breach, the Client does not take measurable steps to cure the breach within fourteen (14) days and/or, (b) in any event, the breach is not cured within thirty (30) days; or
– is not capable of being cured (other than by the payment of money).
3.1. ATALIAN’s prices are determined on the basis of wages, social security contributions and other expenses at the time the offer is made or the contract concluded. The prices stated are always exclusive of VAT, unless otherwise indicated.
3.2. The invoiced amounts also take into account the provisions resulting from the applicable sectoral agreements (in particular regarding the minimum performance of ATALIAN’s staff). ATALIAN shall do everything it can to ensure that the services provided by its staff under the aforementioned regulations are performed without any additional invoicing for the Client. However, if this is not possible, the minimum performance that will be invoiced to the Client corresponds to one (1) working hour.
3.3. In the event of an increase in salaries, social security contributions or other expenses as a result of the evolution of the index figure, sectoral agreements or other justified circumstances, which ATALIAN and the Client consider to be valid reasons for a price change, ATALIAN shall be entitled to immediately adjust the prices, which apply to the Client, to these increase(s).
4.1 The prices were calculated taking into account current economic, legislative, business and/or political parameters in force at the time of signature of this agreement.
4.2 Where ATALIAN shows that: a) the continued performance of its contractual duties has become excessively onerous due to an event beyond its reasonable control – either financial, economic, regulatory, business legislative, political or social factors – which it could not reasonably have been expected to have taken into account at the time of the conclusion of the agreement; and that b) it could not reasonably have avoided or overcome the event or its consequences, then the parties are bound, within a reasonable time of the invocation of this clause, to negotiate alternative contractual terms which reasonably allow to overcome the consequences of the event.
4.3 In case the parties fail to reach an agreement, ATALIAN may terminate the agreement by registered letter with confirmation of receipt subject to a one-month notice, without any right to claim damages for the Client.
- Invoicing – Payment
5.1. Unless otherwise expressly agreed, ATALIAN’s invoices are payable at the company’s head office by transferring the amount into ATALIAN’s bank account, the number of which is stated on the invoice. Payments in cash, by cheque or in any other way are not opposable to ATALIAN.
5.2. ATALIAN may invoice the Client for the monthly subscription services as of the first day of the month. These invoices for services that have yet to be performed are then due and payable on the last day of the invoicing month. Invoices for amounts less than EUR 500 are always subject to an administrative charge of EUR 15 per invoice.
5.3. In the absence of any protest by registered letter within eight (8) calendar days of an invoice, this invoice, the invoiced sum and the invoiced performances, services and works of ATALIAN are tacitly and irrevocably accepted by the Client. Given the nature of the services, 8 days is a reasonable period for protesting such invoice.
5.4. In the event of non-payment by the due date, interest on arrears will be payable, by operation of law and without prior notice of default, at a rate of 10% per year from the due date of the invoice until the date of full payment, as well as a conventional increase of 10% on the amount due, with a minimum of EUR 250. In addition, ATALIAN is entitled to charge an amount of EUR 15 for each payment reminder to cover administrative costs.
5.5. The non-payment on the due date of one invoice makes the balance due of all other invoices to the Client, even those that are not due, immediately due and payable by law and gives ATALIAN the right to suspend all current orders and services.
5.6. Payments are always used to first settle the oldest outstanding debts, including accrued interest.
- Access – utilities
The Client undertakes to allow ATALIAN’s personnel access to the premises provided for in the contract, at the appropriate times, so that ATALIAN can perform its services. The Client also agrees to provide ATALIAN with water, electricity and any heating for the premises free of charge. Any unnecessary travel by ATALIAN due to a lack of water, electricity, access to the Client’s premises, inability to work, etc., as well as any unemployment of ATALIAN’s staff caused by the Client, will be invoiced to the Client at the usual rates.
- Execution of the service
7.1. ATALIAN is entitled to unilaterally arrange the planning and organisation of its services in accordance with the circumstances of need (e.g. illness) and may unilaterally change the planning and organisation at any time, even without prior consultation with the Client. Given the nature of the services provided by ATALIAN, ATALIAN and the Client agree that such flexibility in the planning and organisation is customary in the relevant sector and is essential for the proper execution of the agreement between the parties. If, as a result of a Client request, the planning and organisation of ATALIAN must be changed, all additional costs (personnel costs, depreciation of investments, etc.) will be owed and charged to the Client by ATALIAN. If the Client refuses to bear these costs, ATALIAN has the right to terminate the contract with immediate effect at the expense of the Client, without prejudice to ATALIAN’s other rights or remedies.
7.2. If an agreement is reached between the Client and ATALIAN on the basis of a specifications or price request by the Client, and not on the basis of a prior (full or partial) site visit, and if it is found that the content or circumstances do not correspond to the data made available, then all the additional costs associated with this will be borne by the Client. If the Client refuses to bear these costs, ATALIAN has the right to terminate the contract with immediate effect at the Client’s expense, without prejudice to ATALIAN’s other rights or remedies.
7.3. The number of working days is described in the work programme and represents an annual average. With the exception of a leap year, in which case 29 February is charged separately. In its calculations ATALIAN provides for an average of 10 public holidays per year. Other public holidays such as the French or Flemish Community holidays are not included in this average. No credit note can be requested for public holidays that fall on a normal working day (including the French and Flemish Community holidays). The Client undertakes to inform ATALIAN in writing each year, by 15 December at the latest, of the annual collective closure days, the recovery days for public holidays and any bridging days that will apply in its company for the coming year, so that the Client’s compensation days can correspond to those of ATALIAN’s staff. A new Client shall notify ATALIAN of the annual collective closing days, the recovery days for public holidays and any bridging days immediately and no later than 15 days after the start of ATALIAN’s services. If the Client fails to do so within the above-indicated period, it must pay the wages, costs and expenses of ATALIAN’s employees for the days that they did not work and reimburse ATALIAN, even if the employees did not work since ATALIAN was not able to notify its employees of these closure days and recovery days.
7.4. If significant investments (machines, vehicles, etc.) have to be made, ATALIAN provides for a five-year period for amortising these investments. Therefore, unless otherwise stated in the Client’s specifications, in the event of early termination of the agreement, the Client agrees to take over all the investments themselves or have them taken over by the new service provider at the residual value. ATALIAN reserves the right to transfer these investments.
7.5. For the provision of glass washing services, rain will not impede the performance of the cleaning services. If the performance cannot be executed due to an explicit request of the Client (within two (2) working days) prior to the performance, it will be charged in full. In this case, the Client shall not be entitled to any damages or compensation from ATALIAN.
7.6. The application of the Act of 8 December 2013 on the recording of attendance (checkin@work) for works in immovable property (including maintenance, repair, cleaning) equal to or exceeding the legally defined threshold amount for one Client and at one location that are performed entirely by ATALIAN, under its own management or by subcontractors, shall be borne by ATALIAN. If ATALIAN only performs a portion of the work worth less than the legally defined threshold amount, under its own management or by subcontractors, on behalf of a main contractor, then this attendance recording will be borne by the main contractor, unless otherwise agreed in the special conditions.
7.7. The Client is not entitled to increase or decrease the services in the Client’s sole discretion. During the term of a fixed-term or open-ended contract, any revision or change that results in a reduction in invoicing or the number of employees employed by ATALIAN, at the request of the Client or ATALIAN, will only come into effect with the agreement of both parties and no earlier than six months after the registered notification of the revision request. In the event of the Client taking over personnel, the latter shall bear the costs of any reduction in hours.
7.8. Where employees habitually work for the same Client, and where the employees of that Client enjoy a public holiday not provided for by law, other than the eleventh public holiday referred to in Article 4 of the collective agreement of 11 April 1992, the employees shall be entitled to the pay for that day under the same conditions as a public holiday.
7.9. The minimum performance is fixed at one hour which may be spread over several directly consecutive worksites. “Directly consecutive” shall mean a movement of no more than 10 minutes on foot between two worksites.
7.10. Unless expressly authorised in writing, ATALIAN’s services are provided between 6 a.m. and 10 p.m., from Monday to Friday and only on working days.
7.11. In accordance with the provisions of Chapter IV, Articles 4, 5, 8 and 9 and Chapters V and Va of the Law on the Welfare of Employees, the Client undertakes to provide ATALIAN with a list of the risks and specific preventive measures of its installations before commencing any cleaning work.
7.12. With regard to window washing services, the Client undertakes to clear the windowsills beforehand and to ensure that the outside of the windows is accessible. Window washing shall not involve the removal of stickers, posters, decorative or otherwise, tags, fabrics or any other obstacle preventing the normal washing of the windows, except as expressly provided for in the specifications. In order to ensure the safety of ATALIAN’s employees and to comply with social legislation on the safety and well-being of employees, the Client shall take the necessary measures and provide ATALIAN with the equipment and means to prevent all possible accidents (safety line, anchor points, etc.). In the absence of such measures, ATALIAN will arrange for the installation of the equipment and resources that it deems necessary to ensure safety and will charge the Client for their cost. The Client undertakes to accept and bear these costs to the extent that they are reasonable.
7.13. The compulsory statutory inspections of the lifting equipment and safety installations are at the expense of the Client. The Client shall ensure that the lifting appliances, safety installations and other equipment that it makes available to ATALIAN’s cleaning staff remain in good working order and the Client shall, on request from ATALIAN, immediately provide a copy of the report of the most recent inspection. If the facilities are defective, ATALIAN has the right to suspend the work and invoice its normal services as well as the additional costs resulting from this suspension.
7.14. At the end of the agreement and with a view to the proper application of the Collective Labour Agreement of 12 May 2003 regarding the takeover of staff, the Client shall provide ATALIAN by registered letter with the name and contact details of the company that is taking over the services that are the subject of the agreement with ATALIAN, and this at least 30 calendar days before the end of the agreement. In the absence of the name or valid contact details of the acquiring company within this period, or in the absence of application of the above-mentioned collective bargaining agreement, the employees employed by the Client will be terminated at the Client’s expense.
- Data protection and confidentiality
8.1. Both parties as data controller are obliged to comply and to procure their affiliates to comply with the relevant provisions of all applicable data protection laws regarding the processing and confidentiality of personal data, in particular the General Regulation on Data Protection 2016/679. The parties undertake not to commit any act likely to put the other party in a position of violating the said laws protecting personal data.
8.2. Consequently, the parties undertake mutually to take the necessary measures to ensure the protection and confidentiality of the data that they will share with each other and to process such data solely within the scope of the agreement, and in compliance with the applicable legal and regulatory provisions, in particular those relating to personal data in the agreement, in order to guarantee the secure and confidential processing of such data. Upon termination, each Party shall return all information contained therein to the other Party upon request without undue delay. Either Parties’ obligation to keep records and usual data security measures remain unaffected.
8.3. The parties guarantee that the data that may be stored on their installations or that they may access from their installations or from those of third parties that they use, on the date of signature of the agreement or subsequently, will be located in the European Union.
8.4. ATALIAN belongs to a group whose holding company has issued transferable securities listed on a European regulated market. As a result, any confidential information on either ATALIAN or any of its affiliates is likely, if disclosed, to potentially influence the market.
8.5. Consequently, the Client must maintain the confidentiality of all information transferred by ATALIAN, all its Affiliates and any of its employees, and keep a register of persons having access to confidential information in accordance with ESMA standards. The Client undertakes to communicate to ATALIAN the name of an interlocutor, who will be responsible for this list of insiders and to provide a copy thereof upon request from the regulatory authority and/or ATALIAN.
8.6. This confidentiality clause shall survive the expiry of these terms between the parties for a period of five (5) years.
- Liability – Insurance
9.1. Unless otherwise expressly agreed in writing, ATALIAN’s contractual obligations are always obligations of means and it can only be held liable for its intentional fault.
9.2. Any liability of ATALIAN for damages, in principal, interest and costs, is always limited to the value of three months of contractual performance with a maximum of €12,500. In the case of one-off work, ATALIAN’s liability shall also be limited to the amount of the turnover made with a maximum of €12,500 per work site.
9.3. In the event that the limitation of ATALIAN’s liability under Article 9.2, or an appeal thereto, is not accepted by the court, ATALIAN’s liability shall be limited to damage to the Client’s property and personal injury, and in any event to a maximum of the payment made by the insurer under the Civil Liability insurance taken out.
9.4. ATALIAN cannot be held liable for indirect, consequential, or immaterial damages, including loss of income or loss of profit;
9.5. ATALIAN has taken out insurance to cover the work accidents of its staff and its civil liability in connection with the performance of the work that is the subject of this agreement.
9.6. The Client must inform ATALIAN before the start of the contract if an extension of the insured amounts is required in light of the envisaged assignment. This will give rise to an invoice surcharge.
9.7. ATALIAN is not liable for thefts and dishonest acts committed by its staff. The Client must take the necessary precautions to prevent these acts.
9.8. No penalty of any sort can be charged to ATALIAN without both parties’ prior written consent.
- Complaints procedure
10.1. Any complaint regarding ATALIAN’s personnel or the services provided by ATALIAN, as well as complaints regarding loss or damage resulting from a fault on the part of ATALIAN must, in order to be admissible, be communicated to ATALIAN immediately and at the latest within two (2) working days following the fact or services that are the subject of the complaint, by registered letter with a copy by email. This allows ATALIAN to conduct an internal investigation. Given the nature of the services provided by ATALIAN, a period of two (2) days is a reasonable period to file such a complaint.
10.2. The Client bears the full burden of proof of the grievances and complaints invoked by it and accepts that ATALIAN is bound by an obligation of means as set out in Article 9.1. When assessing the performances, the execution of the given order is essential and the indication of the number of hours for the performances is purely indicative and secondary.
10.3. Except in the case of express and written recognition by ATALIAN or in the event that a court has ruled on the matter, the Client may not invoke the complaints invoked under 10.1 in order to withhold payment of its invoices, suspend the execution of the contract or unilaterally terminate the contract, without prejudice to the application of Article 11.3.
- Non-performance – consequences
11.1. If the Client fails to pay its invoices on their due date or to comply with other obligations, ATALIAN shall be legally entitled to suspend its services until regularisation of the late payment or non-compliance by the Client.
11.2. After ATALIAN has sent the Client a registered notice of default for payment of overdue invoices or performance of required obligations, ATALIAN shall be legally entitled to terminate the contract at the expense of the Client, if the latter fails to pay or perform within 14 days of the date of the notice of default.
11.3. In the event that the agreement between the parties is dissolved on behalf of the Client, the latter will automatically owe ATALIAN a fixed amount of compensation equal to the value of six months of contractual services. For one-off works, the compensation shall amount to 80% of the cost of the remaining works. This does not affect ATALIAN’s right to claim full compensation from the Client for actual and proven damages that exceed the flat-rate compensation provided for in this Article.
11.4. If ATALIAN fails to perform its obligations, the Client may only dissolve the contract in the event of serious fault on the part of ATALIAN and after sending a registered notice of default that remained without action by ATALIAN within 14 days.
12.1. The Client undertakes to not employ any member of ATALIAN’s staff with whom it has had relations in connection with the execution of the contract and to not have them perform any services, in any form whatsoever. This applies during the contractual relationship with ATALIAN and for a period of six (6) months after the end of the contractual relationship or starting on the day when this member is no longer part of ATALIAN’s personnel. In the event of any breach of this obligation, the Client shall compensate ATALIAN for the resulting harm and damage. This compensation owed to ATALIAN may under no circumstances be less than a minimum amount set at a flat rate of EUR 5,000 (five thousand euros).
12.2. Except with the prior written consent of ATALIAN, its personnel may not provide any services other than those provided for in the contract. In the event that such services are performed at the Client’s request, they will be invoiced to the Client by ATALIAN at its usual rates.
- Force majeure
13.1. A case of force majeure, regardless of whether this makes the further execution of the agreement temporarily or permanently impossible or unreasonably burdensome for ATALIAN, will suspend the obligations of ATALIAN under the agreement and/or nullify them by operation of law and discharges ATALIAN from any liability or compensation that may arise as a result. The following are considered as cases of force majeure for ATALIAN: war and similar situations, decisions by the authorities, strikes, floods, fire, epidemics, pandemics, as well as any cause beyond the control of ATALIAN that makes the execution of the contract impossible. This also applies in the case of shortcomings or delays in the provision of services caused by force majeure. This list is not exhaustive.
13.2. ATALIAN shall notify the Client of such circumstances without delay.
13.3. Should the force majeure situation last longer than one month, both ATALIAN and the Client shall be entitled, by registered notification to the other party, to unilaterally terminate the contract for the part that has not yet been executed, without judicial intervention.
ATALIAN may transfer all or part of its rights and obligations under the agreement to a third party at any time without prior notice to the Client.
- Compliance, ethics, and anti-corruption
15.1. The Client declares that it complies and shall continue to comply with international laws, regulations and ethical standards, acting with integrity globally, and complying with applicable laws, including applicable anti-corruption laws and ethics applicable to the fulfilment of its obligations under this agreement. The Client acknowledges and recognizes that he has read, understood, and fully accepts the rules of ATALIAN’s Code of Business Conduct, and it commits to abide by them.
15.2. In particular, the Client undertakes to comply with the provisions of Belgian law which came into force on 11 May 2007 and which deals with transparency and the prevention of corruption and bribery.
15.3. Should the Client breach any of the provisions of the said laws, in particular, the prevention of corruption, ATALIAN reserves the right to immediately terminate this agreement, without notice and at no charge, by a simple notification sent by registered letter to the Client, with no right to claim any damages.
15.4. The Client declares and guarantees that it has not during the precontractual relationship, and will not give or offer to give, directly or indirectly, to an Official Representative or to a private person (within the framework of a professional or social activity, a management function or work for a natural or legal person) a sum of money or any other benefit of any kind, financial or not, for itself or for others, for the purpose of performing or refraining from performing (or because it has performed or refrained from performing) an act of its function, mission or mandate, or facilitated by its function, mission or mandate, particularly with the aim of obtaining commercial advantages or obtaining and/or maintaining business relations.
15.5. The word “Official Representative” shall mean for the purposes of this clause as any person holding public authority or having responsibility for public duties or any person with an elected mandate. This word also includes all employees and agents of public organisations or companies in which a majority stake is held by the government, any person acting as an expert with governmental and/or regulatory organisations and any person working for international organisations.
15.6. The Client declares it took all appropriate measures to ensure compliance by its employees with the above ethics rules.
15.7. The Client undertakes to implement adequate internal controls to prevent and detect any act corruption. The Client undertakes to ensure that its accounts and books accurately reflect all transactions carried out in the performance of the agreement. The Client undertakes to keep all accounting documents and other evidence providing proof of payments made or received and expenses it has incurred for the purposes of this agreement for at least six (6) years from the expiry or termination of the agreement.
- Disputes – Applicable law
Belgian law applies to all offers, orders and agreements to which these General Terms and Conditions apply, as well as to all agreements connected with them. All disputes relating thereto shall be settled by the competent courts of Brussels.