General Terms and Conditions
General Terms & Conditions of Jonas Deforche bvba, version 1.0 – July 2020.
These General Terms & Conditions of Sale will apply to all (sales) transactions of Jonas Deforche bvba and its subsidiary companies.
In this Agreement the following terms will have the following meaning:
“Business Day” means a day (other than a Saturday, Sunday or national holiday) on which banks in the country of the Seller are open for banking transactions.
“Buyer” means the person who accepts a Quotation of the Seller for the sale of the Goods or whose Order for the Goods is accepted by the Seller.
“Conditions” means the terms and conditions of sale set out in this document and (unless the context otherwise requires) including any special terms and conditions agreed in writing between the Buyer and the Seller.
“Contract” means the contract for the purchase and sale of the Goods.
“Goods” means the goods (including any installation of the goods or parts for them) which the Seller is to supply in accordance with these Conditions.
“Order” means a quotation of Seller accepted by Buyer, meaning an instruction to Seller to deliver the Goods to Buyer, or installation of the product at the premises of Buyer or any other agreed upon location, or delivery at a specific location where Buyer will pick up the Goods.
“Seller” means Jonas Deforche bvba or any of its subsidiary companies. These General Terms & Conditions will apply to all quotations of Seller and all (sales) transactions concluded with Seller, unless otherwise agreed in writing between Seller and Buyer.
Name entrepeneur: Jonas Deforche bvba
Address: Krinkelstraat 1 box 3, B-8780 Oostrozebeke
Phone number: +32 474 82 83 80
Phone number: +32 474 82 83 80
TAV BE 0677 521 442
3. BASIS OF SALE
3.1. The Seller shall sell and the Buyer shall purchase the Goods in accordance with and subject to these Conditions.
3.2. Variations to these Conditions will not be binding, unless agreed upon in writing between the authorised representatives of the Buyer and the Seller.
3.3. The Seller’s employees or agents are not authorized to make any commitments concerning the Goods, unless confirmed by the Seller in writing. By signing the Contract, the
Buyer acknowledges that he does not rely on, and waives any claim for breach of, any such commitments which are not confirmed.
3.4. Any advice or recommendation given by the Seller or its employees or agents to the Buyer as to the storage, application or use of the Goods which is not confirmed in writing by the Seller, is followed or acted upon entirely at the Buyer’s own risk, and accordingly the Seller will not be liable for any such unconfirmed advice or recommendation.
3.5. Any typographical, clerical, or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller will be subject to correction without any liability on the part of the Seller.
3.6. Devices, drawings, models, samples, descriptions, images and such, as well as possible appendices and records will be part of the quotations of Seller. All this remains, as well as tools made in this respect by Seller, the property of Seller, must be returned on request to Seller and cannot without the explicit written approval of Seller be copied and/or are delivered to third parties. Seller reserves all possible existing intellectual and industrial property rights hereto.
4. ORDERS AND SPECIFICATIONS
4.1. The Buyer has the responsibility to the Seller for ensuring accuracy of the terms and applicable specifications of any Order submitted by the Buyer and for giving the Seller all necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
4.2. In case no prior written acceptance of any Order by Seller has taken place, e.g. in case of a sale directly from Seller’s premises, the Order will become effective as soon as Seller has delivered the Goods of the Order (in full or partially) or if Seller sends the invoice for these Goods to Buyer at his request.
4.3. The quantity, quality and description of the Goods shall be those set out in the Seller’s quotation or the Buyer’s Order.
4.4. The Seller reserves the right to make any changes to the specifications of the Goods, if these changes are necessary to conform with any applicable safety or other statutory or regulatory requirements, or if they do not substantially affect their quality or performance.
4.5. No Order which has been accepted by the Seller may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss, costs, damages, charges and expenses incurred by the Seller as a result of cancellation.
PRICE OF THE GOODS
5.1. The price of the Goods is the Seller’s quoted price. If no price is mentioned or if the price in the quote no longer is valid, the current price can at any time be obtained from the Seller. All prices quoted are valid for 30 days only, unless specified otherwise in the quotation, or in
case of an earlier acceptance by the Buyer, after which time prices may be altered by the Seller without giving notice to the Buyer.
5.2. The Seller reserves the right, by giving notice to the Buyer at any time before delivery of the Goods, to increase the price to reflect any increase in cost to the Seller, which might be due to any change in delivery dates, quantities or specifications for the Goods requested by the Buyer, or any delay caused by any instructions from the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
5.3. Any costs other than for standard packaging and transport are not included in the price of the Goods, unless specified otherwise in writing by Seller.
5.4. The price is inclusive of any assembly costs, but exclusive of any operational costs, import-, export- and stamp duties, clearance costs, applicable Value Added Tax and/or any other legitimate levies, which will be charged additionally to Buyer if and when applicable.
TERMS OF PAYMENT
6.1. Unless any special terms were agreed upon in writing between the Buyer and the Seller, the Buyer will pay one third of the total price of the ordered Goods within the first week after confirmation of the Order. When the Buyer has to decide on the color of the product, another one third of the total price must be paid. The Seller will inform the Buyer when the Goods are ready to be delivered. Before delivery, the remaining balance has to be paid in full.
6.2. If the Buyer fails to make any payment on the due date then Seller shall be entitled to:
– 6.2.1. Cancel the Contract or suspend any further deliveries to the Buyer;
– 6.2.2. Classify any other payment made by the Buyer, for any other product, even if it contains a different description, as a payment for the Goods under current Order, as the Seller sees fit.
– 6.2.3. Charge the Buyer interest (both before and after anylegal stipulation or judgement) on the amount unpaid, at the rate of 4 percent per annum on top of the Euribor rate, until payment is made in full (a part of a month is being treated as a full month when calculating the interest).
7.1. Seller will deliver the Goods on a business day to a location agreed upon between Seller and Buyer. The means of transportation are chosen by Seller. In case of impediments or obstructions in the chosen means of transportation, Seller will not be obliged to choose other means of transportation. Seller is not liable whatsoever in case the means of transportation are cancelled.
7.2. Any dates marked for delivery of the Goods are estimates only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence. The Goods may be delivered earlier than estimated. In that case, the Buyer will be notified within a reasonable time in advance.
7.3. In case of staggered deliveries of the Goods, each delivery shall constitute a separate contract and failure by the Seller to deliver any one or more of the parts in accordance with these Conditions or any claim from the Buyer in respect to any one or more parts shall not entitle the Buyer to treat the Contract as a whole as repudiated.
7.4. If the Goods aren’t accepted by the Buyer at the time of delivery or if the Buyer fails to give the Seller adequate delivery instructions (unless caused by circumstances beyond the Buyer’s reasonable control or caused by the Seller) then, without prejudice, the Seller may:
– 7.4.1. Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including, insurance) of storage; or
– 7.4.2. Sell the Goods at the best price and (after deducting all storage and selling expenses) if that price is higher than the agreed upon price in the Order, the Seller will pay the Buyer the surplus, and if the price is lower, charge the Buyer for the deficit.
RISK AND TITLE
8.1. Risk of damage to or loss of the Goods shall pass to the Buyer:
– 8.1.1. In the case of Goods to be delivered at the Seller’s premises, at the time when the Seller notifies the Buyer that the Goods are available for collection; or
– 8.1.2. In the case of Goods to be delivered anywhere else than at the Seller’s premises, at the time of delivery or, if the Buyer wrongfully fails to take delivery of the Goods, the time when the Seller has offered the Goods for delivery.
8.2. All Goods delivered now and in the future will remain the property of Seller until Buyer has paid all unpaid debts and claims to Seller, regardless of the grounds for the debt or claim.
8.3. Until the ownership of the Goods passes to the Buyer, the Buyer shall hold the Goods as the Seller’s fiduciary agent and bailee and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property.
8.4. Until such time when the Goods have become property of Buyer, the Seller shall be entitled at any time to require the Buyer to release and deliver the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
8.5. The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so, all monies owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
WARRANTIES AND LIABILITIES
9.1. Subject to the Conditions set out below, the Seller warrants that the Goods will correspond with their specification at the time of delivery and will be free from defects in
material and workmanship for a period of 24 months from delivery, unless the manufacturer of the Goods has issued a different warranty. In the latter case the manufacturer’s warranty will prevail over the Seller’s warranty as described in this article.
9.2. The above warranty is given by the Seller, subject to the following conditions:
– 9.2.1. The Seller shall be under no liability for any defect in the Goods arising from any drawing, design or other specification supplied by the Buyer;
– 9.2.2. The Seller shall be under no liability in respect of any defect arising from the failure to store the Goods in accordance with the Seller’s instructions or storing the Goods in unsatisfactory or humid conditions, nor any defects arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or alteration or repair of the Goods without the Seller’s approval;
– 9.2.3. The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
9.3. Subject as expressly provided in these Conditions, all warranties, conditions or other terms implied by statute or common law are excluded to the fullest extent permitted by law.
9.4. Unless specified otherwise in writing, any claim by the Buyer which is based on any defect in the quality or condition of the Goods or their failure to correspond with specification shall (whether or not delivery is refused by the Buyer) be notified to the Seller within 180 days from the date of delivery or where the defect or failure was not apparent on reasonable inspection within 30 days from the date of delivery to the customer of the Buyer which ever date comes first. If delivery is not refused, and the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect or failure, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. Claims on delivered used Goods will not be answered and Seller is not responsible for those Goods in any way unless agreed in writing.
9.5. Under penalty of preclusion of Buyer’s rights and notwithstanding Clause 9.4, Buyer shall report to Seller in writing any complaints about the quantity, size, weight, packaging and/or damage of the delivered Goods within 5 Business Days after the date of risk transfer as defined in Clause 8.1.1 or 8.1.2.
9.6. Where any valid claim in respect of any of the Goods which is based on any defect in the quality or condition of the Goods or their failure to meet specification is notified to the Seller in accordance with these Conditions, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
9.7. Except in respect of death or personal injury caused by the Seller’s negligence, the Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, or any duty at common law, or under the express terms of the Contract, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses, or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, it’s employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in these Conditions.
9.8. The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any act of God, riot, strike, lockout, trade dispute or labour disturbance, accident, breakdown of plant or machinery, fire, flood, difficulty in obtaining workmen, materials or transport or any other cause beyond the Seller’s reasonable control.
9.9. Notwithstanding the foregoing, Seller will in any case not be liable for any indirect damages of Buyer, including, without limitation, special or consequential damages, or any damages, whatsoever resulting from any default or breach under these Conditions or from the Goods delivered to Buyer, and the maximum liability of Seller for damages (whether in contract, tort or whatsoever arising, including for the avoidance of doubt, any liability for the Goods), shall in any event not exceed the purchase price of the Goods.
INSOLVENCY OF BUYER
10.1. Without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and, if the Goods have been delivered but not paid for, the price shall become immediately due and payable, notwithstanding any previous agreement or arrangement to the contrary, when:
– 10.1.1. The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation (otherwise than for the purpose of amalgamation or reconstruction); or
– 10.1.2. An encumbrancer takes repossession of any of the property or assets of the Buyer, or a receiver is appointed; or
– 10.1.3. The Buyer ceases, or threatens to cease, to carry on business; or
– 10.1.4. The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and he notifies the Buyer accordingly.
11.1. Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing.
11.2. If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part, the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
11.3. The Contract shall be governed by the laws of the country of Seller and any dispute between the parties shall solely be referred to a competent court of the statutory place of business of Seller, unless Seller and Buyer have agreed to settle the dispute by arbitration. The provisions of the Uniform Laws of the International Sale of Goods (C.I.S.G.) are expressly excluded.