Article 1 – Scope
The present general terms and conditions, the contents of the offer sent to the Buyer as well as the order confirmation govern the legal relationship between the Buyer and nv Devan (hereinafter referred to as “the Seller”). In case of contradiction between the contents of the offer and the order confirmation on the one hand, and the present general terms and conditions on the other hand, the contents of the offer and the order confirmation will prevail.
Any other terms and/or conditions from the Buyer will be considered null and void unless explicitly otherwise approved of in writing by the Seller.
The present general terms and conditions were communicated to the Buyer prior to the moment at which the order was placed by the Buyer with the Seller. By placing the order, the Buyer accepts the contents of both the offer and the general terms and conditions which were communicated to him and acknowledges to have understood their meaning and to agree with them without reserve. The contents of the agreement entered into by the parties is confirmed in an order confirmation sent to the Buyer by the Seller.
If the agreement entered into between the Buyer and the Seller should be qualified as a service contract for the development and delivery of products, the present general terms and conditions will be mutatis mutandisapplicable.
Article 2 – Offers and orders
The offers will remain valid for a one-month-period following the sending of the offers. The offers constitute an indivisible whole. They are a mere proposal from the Seller and they do not bind the Seller. An agreement between the Buyer and the Seller can only be established at the moment when the Seller accepts an order from the Buyer and when he confirms the order to the Buyer by means of an order confirmation.
Any order which is placed by an agent, a dealer or a representative, and the undertakings made by them, will only bind the Seller upon his approval thereto.
Article 3 – Object of the agreement
The object of the agreement covers the merchandise, either or not manufactured to size, specified in the offer and in the order confirmation (hereinafter referred to as “the Sold Merchandise”).
The Buyer is responsible for the choice of the Sold Merchandise. The Seller cannot be held liable if it should appear that the Sold Merchandise cannot be used for the use or goal viewed by the Buyer.
The Buyer undertakes neither to analyse the Sold Merchandise himself nor to have it analysed by a third party in view of commercialising the Sold Merchandise. Furthermore, it is strictly forbidden for the Buyer to establish, directly or indirectly, intellectual rights in any manner, shape or form, to the Sold Merchandise or the techniques on which the Sold Merchandise is based.
Article 4 – Transfer of property
The property of the Sold Merchandise is transferred only when payment in full has been received. The Buyer undertakes to store the Sold Merchandise in kind and not to make them immovable by destination, nor to mix the Sold Merchandise with any other moveable goods until full payment of the purchase price and the costs has been made.
As long as the transfer of property has not been completely carried out, the Buyer will use all possible endeavours to protect the Sold Merchandise against any form of partial or complete loss, such as – but not limited to – fire, water damage, danger of explosion, theft, … The Buyer undertakes to insure the Sold Merchandise against such risks during the period between the delivery and the transfer of property for an amount equal to the purchase price and the costs.
Article 5 – Delivery conditions
Delivery shall be ex works plant Devan (Incoterms 2000). However, parties are entitled to designate by mutual agreement a different delivery address. In that case, the Sold Merchandise will be transported at the Buyer’s risk and expense, even if the Seller takes care of the transport.
The times for delivery given by the Seller are given as estimates and do not bind the Seller. Therefore the Buyer is not entitled to terminate or to claim termination of the agreement, nor to claim compensation for the non performance of the given delivery date.
However, if the Seller should have undertaken explicitly to deliver on a certain date and if said delivery does not take place on that date, the Buyer shall send the Seller a default notice by registered mail. The Seller undertakes to deliver the Sold Merchandise within 15 days following the receipt of the registered letter, except in case of force majeure. Force majeure includes, but is not limited to: orders from the government, mobilization, war, epidemics, lock-out, strikes, demonstrations, defects, fires, floods, explosions, shortage of raw materials, energy or manpower, modified economic conditions, vandalism, extraordinary weather conditions, and any circumstances which interfere with the normal procedures against the Seller’s will, in which case the Seller does not have to prove that said circumstances could not be foreseen.
The delivered Sold Merchandise will under no circumstances be taken back.
Article 6 – Acceptance – defects
The Buyer will collect the Sold Merchandise at the agreed upon date and place or take delivery of the Sold Merchandise at the agreed upon delivery date and place. If the Buyer or any person entitled is not present at the agreed upon place, date and hour, the second presentation of the Sold Merchandise will be at his own risk and expense.
Taking delivery by the Buyer or any person entitled of the Sold Merchandise on the date of delivery implies the acceptance of the Sold Merchandise by the Buyer. As from that very moment, the Seller can no longer be held liable for any visible defects.
The Seller protects the Buyer against any hidden defects for a period of thirty calendar days, starting on the date of delivery. In order to enjoy said protection, the Buyer is obliged to notify the hidden defect to the Seller by registered mail within a short period of time and in any case within a period of seven days following the establishment by the Buyer of any hidden defect or following the moment on which the Buyer should have established the hidden defect. The Seller cannot be held liable for the quality or the capacity of the Sold Merchandise in case the defect in the quality or the capacity results from a specific, abnormal or wrongful usage. The Seller cannot be held liable in case the Sold Merchandise has already been processed or adapted.
The Seller can only be held liable for hidden defects (such as intrinsic production defects) if the defect is contradictorily established. In case of a hidden defect, the Seller will, left to his own decision, either replace the Sold Merchandise or partially or completely pay back the invoiced amount. The Buyer will in no event be entitled to claim any other compensation.
Article 7 – Liability
Except for the explicit obligations entered into by the Seller pursuant to the present agreement, the liability of the Seller is limited to the liabilities mandatorily imposed by law.
In case he is liable, the Seller can in no event be held liable for any indirect damage, such as – but not limited to – the loss in sales or any increase in general costs or damage to third parties or goods belonging to third parties.
In any case, the responsibility of the Seller is limited to the amount which was/will be invoiced by the Seller to the Buyer.
The Seller is not bound and cannot be held liable for any recommendations relating to the storage, the destination or the use of the Sold Merchandise.
Article 8 – Price and payment
The price mentioned in the offer and the order confirmation is quoted exclusive of any VAT, taxes, duties and includes neither the costs of delivery or collection of the Sold Merchandise nor any mounting or installation costs. These charges, duties and costs are entirely at the Buyer’s expense.
The Seller is entitled to ask for an advance payment. In the absence of payment of said advance payment, the delivery does not have to be carried out.
All invoices are payable on the mentioned due date by transferring the invoiced amount to one of the bank accounts figuring in the invoice, stating the invoice number, even in case of complaints or objections from the Buyer. The invoices are payable in Ronse. The Seller is entitled to refuse any payment made by means of paper securities (cheque or bills of exchange). In case the Seller accepts any such negotiable paper securities, the handing over of said paper securities will only be accepted as a payment as from the day on which the Seller unconditionally and irrevocably receives the sum of money mentioned therein. As a consequence, both the purchase price and the costs will only be considered definitely settled as from the moment they have actually been received by the Seller.
Any protest against the invoice will be made by registered letter within eight days following the receipt of the invoice.
In case of non-payment or partial payment of the invoice within the given period of time, a 13 % default interest as from the due date of the invoice, will be due by right, even in the absence of notice of default. Should the case occur, said interest will be charged pro rata temporis. Moreover, in case of non-payment or partial payment of the invoice within the given period of time, a 10 % lump sum compensation of the invoiced amount will be charged, with a minimum of 50 EUR, without prejudice to the right of the Seller to prove larger damages and to claim a higher compensation. The costs resulting from any recovery of the invoices before the court, will also be charged to the Buyer.
The non-payment of any invoice by the Buyer will automatically and by right bring about that any other invoice sent to the Buyer by the Seller will immediately fall due by right and that consequently, default interests from that date on, as well as the aforementioned lump sum compensation will be due.
In case of non-payment of the invoice by the Buyer before the agreed upon payment date, the Seller will be entitled by right and automatically to suspend any further order or delivery.
Article 9 – General
The nullity or ineffectiveness of one of the provisions set forth in the present terms and conditions will in no event influence the validity or the effectiveness of the other provisions therein. The parties shall, by mutual agreement, use all possible endeavours to replace the null and void or ineffective clause by a valid clause having the same or having to a large extent the same economic impact as the null and void or ineffective clause.
The present general terms and conditions or the provisions of the order confirmation, can in no event be tacitly deviated from. Merely tolerating the Buyer’s conduct contrary to the agreement, does in no event imply a renouncement by the Seller of the contents of the present general terms and conditions or the contents of the order confirmation.
The present general terms and conditions and the contents of the offer and the order confirmation replace any written or oral engagements, agreements, proposals and obligations preceding the agreement entered into by the parties.
Article 10 – Applicable law – Responsible court
The agreement is governed by Belgian law. Any and all disputes shall be brought exclusively before the courts of Oudenaarde (Belgium).