GENERAL CONDITIONS OF SALE AND DELIVERY OF TECHNODIAMANT BVBA
Art. 1 Object
1.1 Subject to explicit written agreement to the contrary, all work, tenders, deliveries and agreements are subject to the following conditions which are regarded as being known to and accepted without reservation by our clientele.
1.2 By placing an order, the purchaser declares that he accepts these conditions. Any counter- condition stipulated by the client is completely null and void, unless we have provided explicit acceptance in writing and this is only valid for the order to which it refers.1.3 The applicability of a potential buyback or other conditions as buyer is explicitly rejected.
1.4 These general conditions of sale replace all previous general conditions of sale.
Art. 2 Establishment and content of agreements
2.1 Subject to written stipulations to the contrary, our tenders are without obligation and under no circumstances may they be regarded as official offers. Under no circumstances are we bound by these tenders, even after acceptance by the client, as long as we have not confirmed the order in writing with an order confirmation.
2.2 By accepting this tender, the purchaser accepts the specifications of our tender, specifically the quantity, dimensions, execution, price, delivery time and payment conditions.
2.3 Potential inaccuracies in the order confirmation must, under penalty of cancellation, be reported in writing within three (3) working days after the date of the order confirmation. After this period has expired, the data shown on the order confirmation shall be regarded as correct.
2.4 By requesting a design or drawing, the clivent undertakes to pay the expenses for them.
2.5 Changes, additions or improvements that need to be inserted at the time of finalization of the order shall be taken into account in the fee charged.
2.6 Any commitments entered into by our representatives and distributors are only valid after written confirmation by us.
Art. 3 Prices
3.1 All of our prices are shown net, in euros, exclusive of VAT, ex-factory and uninstalled.
3.2 Our prices always apply for a global delivery unless a different arrangement is explicitly stated on the order confirmation.
3.3 Regardless of the prices stipulated in an order confirmation, these shall be subject to an increase in the event of an increase in our costs, including, but not limited to, the cost of labour, raw materials, energy, delivery by third parties or other circumstances beyond our reasonable control.
3.4 For selling prices in foreign currencies, the applicable exchange rate is always the one in effect on the date of the tender, and any negative change in this rate shall automatically result in a revision of the prices listed.
3.5 On orders totaling below 400 euros excl.VAT , we will add a surcharge of 20 euros.
Art. 4 Payment
4.1 Subject to written stipulations to the contrary, all invoices – including taxes – are payable within thirty (30) calendar days after the invoice date, without compensation or discount.
4.2 In the event of any delay in payment, the purchaser shall owe, starting from the maturity date of the invoice, lawfully and without prior notice of default, late payment interest of 1% per month begun, regardless of any potential damages or expenses.
4.3 In the event of partial delivery, each part shall be billed separately and payment must be made in accordance with the stipulations of article 4.1
.4.4 Compensation or other reductions are not authorized, subject to written agreement to the contrary.4.5 In the event of late payment, the invoice amount shall be increased, lawfully and without notice of default, by a fixed and irrevocable fee of 10%. The parties explicitly agree that this payment is a fixed fee, intended to cover losses incurred by us as a result of extra administrative costs, credit costs and loss of returns on the capital invested. And in the event of derogation from article 1231 of the Civil Code, this fee cannot be amended, even when the shortcoming is only partial. The fee owed shall in any case never be less than 75 euros.4.6 In addition, non-payment of an invoice during the agreed payment period shall entitle us to cancel pending orders, and to lawfully render all outstanding invoices payable.
Art. 5 Delivery
5.1 Delivery periods are only listed in an indicative capacity, and cannot, therefore, provide grounds for damage claims or cancellation of the order.
5.2 Subject to written agreement to the contrary, the delivery is ex-factory.
5.3 If, in derogation from article 5.1, a binding delivery period has been agreed, we are only obligated to pay any damage compensation in the event of late delivery if this has been explicitly agreed in writing in advance. Under no circumstances can this damage compensation exceed more than five (5) % of the value of the late delivery, subject to a maximum of 5,000 EUR.
5.4 We are authorized to carry out partial deliveries or deliveries in phases. These general conditions of sale shall be applicable to all such deliveries. A partial delivery does not exempt the client from his obligation to accept the delivery and to pay the amount invoiced.
Art. 6 Purchase obligation
6.1 The client is obligated to purchase the products that he/she has ordered at the moment that they are delivered by us.
6.2 All products that cannot be delivered within the specified period, due to reasons that are dependent upon the client, shall be stored at the client’s risk. The storage costs shall amount to 5% per month, starting from the first day of storage. Each month begun shall be counted as an entire month.
6.3 If these products cannot be delivered to the client after 1 month, we reserve the right to invoice the total amount for the order, increased with the extra costs paid up to that point, without any obligation to deliver the products.
Art. 7 Transport risk
7.1 All costs for the transport and packaging of the products are the responsibility of the purchaser.
7.2 Delivery of the products to the transporter counts as delivery to the purchaser and the risk is therefore transferred at that moment to the purchaser.
7.3 Even when free delivery has been agreed, the purchaser himself is liable for all damages, such as transport damage, fire and water damage, theft or misappropriation, that originates or occurs during transport.
Art. 8 Complaints
8.1 All complaints regarding the execution of our contracts must be communicated to us no later than 8 days after delivery by registered letter. If this is not the case, the purchaser is regarded as having accepted the delivery without reservation.
8.2 By officially receiving a delivery, the purchaser assumes the obligation to immediately verify its quality.
8.3 No return shipments of products shall be accepted without written agreement in advance.
8.4 If it is a matter of hidden defects, the purchaser must notify us of them within 8 days after they are discovered, by registered letter.
8.5 In the event of a complaint that we have accepted, however, our potential responsibility is restricted to the repair or replacement of the defective products free of charge. In this case we are not obligated to compensate any damages incurred by the purchaser.
Art. 9 Guarantee and repairs
9.1 All products are subject to a one-year guarantee starting from the delivery date. Guarantee means that, if the products do not meet specifications, we have the choice to repair the product or to deliver a new product. Further responsibility from guarantee is excluded.
In case of repair of products owed by the client, our obligation is limited to our best effort to make these products fit for purpose again. We do not guarantee that after repair, the product will be fit for purpose again and neither its functioning as such. In case of a repair and if the repair is performed incorrectly, our guarantee is limited to perform the repair activities again in as far as such repair is still possible.
We do not guarantee repair of products, not originally produced by us.
9.2 This guarantee only applies to the parts and the labour hours.
9.3 The decision to potentially accept a guarantee claim is made exclusively by us.
9.4 The right to make claims under guarantee expires after the one year guarantee period.
9.5 The products sent to us for repairs, whether they fall under the guarantee or not, must always be sent franco factory.
9.6 Repaired products are always transported at the client’s cost and risk.
Art. 10 Risk and storage
10.1 Subject to written agreement to the contrary, the risk of the products is the responsibility of the purchaser starting from the moment of delivery.
10.2 If the delivery is postponed by the purchaser, the products must be stored at his cost and risk.
10.3 If the client has overdue invoices or has not provided his deposit, we are authorized to store the products at the cost and risk of the purchaser and to postpone the delivery until all outstanding payments are made.
Art. 11 Reservation of title
11.1 All products sold remain our property until complete payment of all current and future claims, of any origin whatsoever, and including interest and costs.
11.2 The purchaser may, therefore, under no circumstances claim ownership of products not fully paid for; more specifically, the purchaser cannot offer them as collateral to third parties, incorporate them in other products, transfer ownership or pledge them as security in any way.
11.3 If our property rights are threatened with being damaged in any way through situations such as impounding, filing for bankruptcy or suspension of payments, the purchaser is obligated to inform us immediately.
Art. 12 Demonstration products and studies
12.1 If devices are displayed or provided by us as examples, they are presumed to be displayed or provided on an indicative basis: the capacities of the products to be delivered may deviate from these devices, unless it has been explicitly stated that they would be supplied in compliance with the device provided or displayed.12.2 The potential purchaser shall be charged for any studies, plans, drawings, etc. requested by or drawn up in consultation with the potential purchaser which do not form the object of an order.
Art. 13 Confidentiality
13.1 We and the purchaser are equally obligated to nondisclosure of all confidential information obtained by either party from one another or from other sources within the context of their agreement.
13.2 Information is regarded as confidential if this is stated by one of the parties or if this stems from the nature of the information, punishable by an immediately claimable fine of 2,500 EUR per violation.
Art. 14 Cancellation
14.1 If the purchaser cancels an agreement already established or an order already accepted by us, or cancels and/or revokes work, in addition to compensation for the expenses already incurred, the purchaser is obligated to pay damages of 50% of the value of the cancelled order, work or agreement.
14.2 This stipulation is also applicable in the case of partial cancellation.
14.3 Orders for special, customized products and other nonstandard products may not be cancelled. This includes: products that must be assembled, products that have been tested, assembled or integrated for the client, goods being processed and products prepared specifically for the client.
Art. 15 Dissolution
15.1 In the following cases, all agreements made with the purchaser shall immediately be dissolved, fully or partially, by means of a single written notification, without requirement of notice of default, and without prejudice to our rights to full reimbursement of costs already incurred and potential damage compensation:
– if the purchaser fails to correctly or promptly comply with one or more obligations from the agreement established;
– if the purchaser is placed in composition;
– if the purchaser is declared bankrupt;
– if the purchaser partially or completely transfers, sells, liquidates or shuts down his business;
– if the purchaser’s moveable assets are subject to supervisory or executory seizure.
15.2 If dissolution is claimed, all payments are immediately payable in their entirety, increased by interest and damage compensation.
Art. 16 Intellectual property
16.1 In accordance with the copyright legislation, and as long as the production rights are not purchased by the client, the studies, drawings, plans, etc. remain our property and may not be used in any other way than the manner agreed upon, subject to written authorization.
16.2 We also reserve the right to use the products created as models at trade fairs and in publications.
Art. 17 Liability
17.1 All products are intended to remain in the country in which they are delivered and to be used in the manner agreed with the client. In the case of potential resale or export, the client has the responsibility to comply with the applicable legislation and licenses required in the destination country. We cannot take any responsibility in this regard nor are we liable for any compensation for damages owed to the purchaser as a result of failure to comply with any applicable law in this area.
17.2 Subject to stipulations to the contrary in these General Conditions of Sale, under no circumstances can we be held liable for damages occurring in any way and of any nature whatsoever, based on an extra-contractual or contractual error, negligence on the part of our personnel or agents with regard to our products.
17.3 All conditions, guarantees or other stipulations, either tacit or explicit, imposed legally (with the exception of mandatory legislation) or in any other way, are hereby explicitly excluded insofar as possible, subject to the condition that nothing in this article shall exclude or limit our liability with regard to death or personal injury caused by our negligence or that of our personnel and with regard to claims based on the Product Liability Law of 25 February 1991.
17.4 In any case, our liability shall be restricted to the foreseeable damages and this shall include no consequential losses, including, but not restricted to, loss of income, loss of sales, loss through closure, increased production costs or operating costs, loss of clients, loss of reputation.
Art. 18 Force Majeure
If we are unable to fulfil our contractual obligations at any time or in the event of loss, damage, injury or delay in delivery as a consequence of or caused by force majeure or any unusual incident, or event beyond our control, such as (but without prejudice to the
general scope of the statement above) the commission of any criminal act, the lack of parts (including as a result of late deliveries by our suppliers and/or manufacturers or due to allocation), an act of war (either declared or not), civil unrest, an accident, strikes or lock-outs, humanitarian disasters, natural disasters or events, or failure to act on the part
of the purchaser, or any restriction imposed by a local, municipal or government authority, (including customs authorities) either Belgian or foreign, then we have the option to suspend our deliveries and other obligations for a period of two months, or to cancel the order or the remaining part of an order without further liability. If in such circumstances the agreement is terminated partially or completely, the purchaser shall be obligated to pay, on a pro-rata basis, for all products delivered in accordance with all agreements.
Art. 19 Jurisdiction
These General Conditions of Sale and all tenders and order confirmations are exclusively subject to Belgian law, with the exception of the United Nations Convention on Contracts for the International Sale of Goods dating from 11 April 1980 (the Vienna Sales Convention)
Art. 20 Authorised courts
All disputes related to the establishment, execution, interpretation or termination, stemming from a purchase order, agreement or the general conditions of sale, shall fall under the sole authority of the Courts of Turnhout.