GENERAL TERMS AND CONDITIONS – ETABLISSEMENTEN STEVENS & CO NV
Artikel 1 Scope and general provisions
1.1. Without prejudice to any special conditions that are set out in a separate written agreement, the present general terms and conditions shall apply to all offers, quotations or agreements between ETABLISSEMENTEN STEVENS & CO NV, with registered office at Frankrijklei 98 (box 404), 2000 Antwerp, Belgium, registered in the Crossroads Bank for Enterprises under number 0405.801.082 (hereinafter referred to as the “Seller”) and the buyer (hereinafter collectively referred to as “the Parties”). Where there is a discrepancy between these general terms and conditions and any separate written agreement between the Parties, the express provisions of the separate written agreement shall prevail.
1.2. These general terms and conditions shall take precedence over any (purchasing) conditions of the buyer, even if the Seller has not expressly dismissed the application of those purchasing conditions.
1.3. If any provision (or part thereof) of these general terms and conditions is unenforceable or contrary to a mandatory provision of law, this shall not impair the validity and enforceability of the other provisions of these general terms and conditions, or the validity and enforceability of that part of the provision in question that is not unenforceable or contrary to a mandatory provision of law. In such case, the Parties shall negotiate in good faith to replace the unenforceable or conflicting provision with an enforceable and valid provision that comes closest to representing the purpose and scope of the original provision.
1.4. Where the Seller does not rely upon a particular provision of these general terms and conditions, although the conditions for doing so are fulfilled, this attitude shall not imply a waiver of the rights which the Seller may assert vis-à-vis the buyer by virtue of said provision.
1.5. Unless expressly agreed otherwise, written notifications of whatever nature, including purchase orders and order confirmations, shall be deemed to have been received as follows:
- By registered letter with acknowledgement of receipt: at the moment of actual receipt;
- By registered letter: three calendar days after postmark date;
- By email/simple letter/fax: at the moment of confirmation of receipt;
- Electronically over the online shop: at the moment of confirmation of receipt;
- By courier: at the moment of actual receipt.
1.6. For the purposes of the present general terms and conditions, the time periods are determined as follows:
- The time period is counted from midnight to midnight. It is counted from the day after that of the instrument or event that triggered the time period, and comprises all days, including Saturdays, Sundays and public holidays;
- The due date is included in the time period. If that day is a Saturday, Sunday or public holiday, the due date shall be deferred to the next working day; and
- A time period expressed in months or years shall be counted from the starting date until the day before the end date.
1.7. Unless expressly agreed otherwise, days shall be calendar days. Working days shall be all days of the week, except Saturday, Sunday and public holidays.
1.8. References to an article or sub-article shall be references to an article or sub-article of these general terms and conditions.
Artikel 2 Acceptance of general terms and conditions
2.1. Prior to concluding the agreement, the buyer acknowledges cognizance and full acceptance of these general terms and conditions. The buyer shall be deemed to have accepted these general terms and conditions by placing a purchase order, entering an order request on the Seller’s online shop, or requesting a quotation.
Artikel 3 Conclusion of a sales agreement
3.1. All quotations and offers made by the Seller are always without engagement and shall not be binding on the Seller.
3.2. Orders placed by the buyer shall likewise not be binding on the Seller. Purchase orders shall only be binding on the Seller, and an agreement between the buyer and the Seller shall only be concluded, if the order is expressly accepted by the Seller. If an order request is entered on the Seller’s online shop, the agreement shall only be concluded as soon as the Seller has confirmed and accepted this order request by email.
3.3. The Seller shall be permitted to refuse purchase orders without having to justify its decision to do so. In all cases, a purchase order shall be deemed not to have been accepted if the Seller has not confirmed this order by registered letter, fax or email to the buyer within eight (8) days after receipt of the order.
3.4. Every agreement shall be deemed to have been concluded, after acceptance, at the Seller’s registered office.
3.5. If the buyer cancels its order after it has been accepted by the Seller, the buyer shall in any case be liable to pay the Seller compensation that is fixed at fifteen (15) percent of the purchase price, without prejudice to the Seller’s right to demand performance of the agreement and/or its entitlement to compensation for the actual loss it has suffered.
3.6. The Seller is a business-to-business wholesaler. By placing an order and by accepting these general terms and conditions, the buyer confirms and acknowledges that it is acting for professional purposes and accordingly places the order as a business. If at any time the Seller discovers or has evidence that the buyer qualifies as a consumer within the meaning of Article I.1(2) of the Code of Economic Law (CEL), the Seller shall have the right to consider the sales agreement to be dissolved, without being liable for any compensation to the buyer. The buyer acknowledges and accepts that its capacity as a business within the meaning of Article I.1(1) CEL is an essential condition for the Seller.
Artikel 4 Delivery of goods
4.1. The delivery times stated by the Seller are given for information only and do not constitute an essential part of the agreement. In the event of an abnormal delay in delivery, the buyer shall have the right to cancel the agreement by registered letter and without prior judicial intervention, on condition that the Seller has made no delivery yet within one (1) month after the buyer has given the Seller notice of default by registered letter. The buyer shall expressly waive every other possible remedy, in particular the award of compensation of any kind.
4.2. Unless expressly agreed otherwise, delivery shall take place EX WORKS at the warehouse where the Seller has stored the goods in question for the benefit of the buyer (Incoterms® 2010). If the buyer expressly requests a different delivery method from the Seller, transport shall take place at the expense of the buyer, who shall also bear the risks of storage, loading, transport and unloading. The buyer shall arrange appropriate insurance cover for this. Where the Parties have agreed a different delivery method, this particular arrangement shall only apply to this individual agreement and not to any subsequent agreements between the Parties.
4.3. The Seller shall notify the buyer in writing when the goods are available to the buyer. Unless expressly agreed otherwise, the buyer shall collect the goods, or arrange to have them collected, within one (1) month after receiving that notification. After this time limit has expired, the Seller shall have the right, without prior notice:
- to charge a storage fee of one (1) euro per m³ and per day; and
- to store the goods on open ground.
4.4. If after the time limit of one (1) month for collection referred to in Article 4.3 has expired the buyer fails to collect the goods within fourteen (14) days after receiving from the Seller notice by registered letter to do so, the Seller shall have the right to cancel the agreement without judicial intervention at the buyer’s expense. In that case, the buyer shall be liable to pay the Seller compensation that is fixed at one-third of the purchase price, without prejudice to the Seller’s right to claim compensation for the actual loss it has suffered.
4.5. The goods shall be packaged in the usual manner and marked where appropriate, unless expressly agreed otherwise.
Artikel 5 Price and payment
5.1. Unless expressly agreed otherwise, invoices shall be payable in euros within thirty (30) days after the date stated on the invoice.
In the event of non-payment by the due date, the buyer shall automatically and without notice be liable for default interest at twelve (12) percent per year. Additionally, the buyer shall also be liable to pay a fixed indemnity of ten (10) percent of the outstanding invoice amount, with a minimum of one hundred (100.00) euros, to cover the recovery costs.
5.2. All taxes, duties and/or levies, of whatever kind, relating to the delivered goods, including any new taxes, duties and levies that may be introduced after conclusion of the agreement, shall be borne entirely by the buyer.
Unless expressly agreed otherwise, the import duties in the strict sense shall be included in the price. All other costs, duties, levies and taxes, including VAT, shall not be included in the price. Where appropriate, those costs, duties, levies and taxes shall be charged separately to the buyer.
5.3. The invoices shall be payable in cash at the registered office of the Seller.
5.4. All collection costs of cheques, bills of exchange etc. shall be borne by the buyer and shall be reimbursed to the Seller at the latter’s request.
5.5. Non-payment of an invoice or bill of exchange by the due date shall have the effect, immediately and without notice, that:
- all claims against the buyer that are not yet due shall become payable in full; and
- all deliveries not yet made to the buyer shall be suspended until all claims (including those not yet due) have been settled;
- any current instalment plans relating to earlier invoices or bills of exchange shall be cancelled.
For the purposes of this article, the term “buyer” shall also refer to subsidiaries and affiliated companies of the buyer within the meaning of the Companies Code.
5.6. The buyer shall expressly waive its right to fully or partly suspend payment of the sums it owes by virtue of the agreement if the Seller fails to fulfil its obligations to the buyer for any reason whatsoever, including alleged nonconformity and/or hidden defects.
5.7. Unless expressly agreed otherwise, the buyer shall not be permitted to offset debts.
Artikel 6 Transfer of title
6.1. Title to the goods sold shall only pass to the buyer once the buyer has made full settlement of what is owed to the Seller in consideration of the goods delivered or still to be delivered by the Seller, including payment of the agreed price, costs, interest, and any damages.
6.2. Nevertheless, the risk of loss or destruction of the goods sold shall in accordance with Article 4.2 be fully borne by the buyer from the moment it has taken delivery of the goods.
6.3. Until such time as the title to the goods sold has effectively passed to the buyer, the buyer shall be expressly prohibited from using the goods as means of payment or from pledging them or encumbering them with any other kind of lien.
6.4. The buyer shall notify the Seller immediately and by registered letter in the event that a third party has attached the goods.
6.5. The buyer shall be obliged to take due and proper care of the goods that are subject to retention of title, and shall store and keep them in perfect condition in a suitable and clean place in accordance with the highest standards and safety requirements commonly used in the industry. Furthermore, until such time as the title to the goods has effectively passed to the buyer, the buyer shall have those goods insured against all risks that are common in the industry (such as, but not only, decay or any other form of degradation, fire, water damage and theft), and shall submit the relevant insurance policy to the Seller when the latter so requests.
6.6. The buyer shall notify the Seller if the goods are stored in a property that is not owned by the buyer, and shall disclose the owner’s identity when the Seller so requests.
Artikel 7 Warranty
7.1. The Seller shall not give any warranty apart from that expressly provided for in the relevant mandatory law.
7.2. The buyer shall take delivery of the goods immediately upon delivery and inspect, or arrange to inspect, the goods to ascertain that their quality and/or quantity is as per agreement. Any visible defects in the goods and any complaints regarding the conformity or packaging of the goods shall be reported to the Seller in writing without delay and at the latest twenty-four (24) hours after delivery.
7.3. Complaints concerning visible defects shall only be valid and shall only be investigated if the goods have not yet been used by the buyer. Such complaints shall not suspend the buyer’s payment obligation.
7.4. The Seller’s liability for any hidden defects in the goods supplied by the Seller shall be limited to defects that manifest themselves within six (6) months after delivery. The buyer shall in any case, on pain of loss of recourse, notify the Seller of hidden defects by registered letter immediately and at the latest within eight (8) days after discovering the defect. This notification must contain a detailed description of the defect. Complaints concerning hidden defects shall not suspend the buyer’s payment obligation.
7.5. Where the goods supplied by the Seller contain defects, the buyer shall only be able to request the repair or replacement of those goods, without being entitled to claim compensation of any kind.
7.6. Unless expressly agreed otherwise between the Parties, the Seller shall not be deemed to have knowledge of or to have taken into account the specific use which the buyer will make of the goods; consequently, the Seller cannot be held responsible in this respect. The buyer alone shall be responsible for the specific use that it will make of the goods and/or the purposes for which it will use those goods.
Artikel 8 Liability
8.1. The Seller shall not be liable vis-à-vis the buyer for acts of gross or intentional misconduct committed by its employees, collaborators and/or representatives in the context of their professional activities.
8.2. The Seller shall only be liable in case of deceit, fraud and intentional misconduct on its part.
8.3. Insofar as the Seller is dependent in the discharge of its obligations on the cooperation, services and deliveries of third parties, it shall not be held liable for any damage or loss resulting from faults, including gross or intentional misconduct, committed by those third parties.
8.4. The Seller shall not be liable for, or be bound to pay compensation for, immaterial, indirect or consequential damage, including (but not only) loss of profit, loss of sales, loss of income, production limitations, administrative or labour costs, increases in overheads, loss of customers, or claims from third parties.
8.5. The Seller’s liability shall in any case and in all circumstances be limited to the sale price.
Artikel 9 Broker
9.1. The broker intervening in the transaction between the Seller and the buyer shall be deemed to act on behalf of the buyer. The broker shall be jointly and severally liable with the buyer for the fulfilment of the obligations under the agreement.
9.2. The Seller shall only be bound to pay the brokerage fee at the moment when the price is paid. If only part of the price is paid, the brokerage fee shall only be due proportionally.
Artikel 10 Applicable law & jurisdiction
10.1. All agreements covered by the present general terms and conditions and all other agreements ensuing therefrom shall be governed exclusively by Belgian law. The application of the Vienna Sales Convention of 11 April 1980 is expressly excluded.
10.2. Any and all disputes between the Parties in connection with the agreements covered by these general terms and conditions shall be submitted to the exclusive jurisdiction of the courts of the judicial district of Antwerp, Antwerp division (place where the Seller has its registered office).