1. Agreement
1.1. All agreements, quotes, offers, orders, invoices and credit notes relating to the delivery of goods and services realised by TECHNOVIT GLASTECHNIEK BV, with registered office at B-3294 Diest, Herrestraat 12, and registered in the Crossroads Bank for Enterprises under number 0447.436.056 (hereafter the "Seller"), either in writing or agreed upon verbally, are subject to the general terms and conditions stipulated hereafter (hereafter "General Terms and Conditions"). Any other stipulations appearing on the documents of the buyer or client (hereinafter the "Buyer"), including its general terms and conditions, are hereby excluded, unless otherwise agreed between the parties. Subject to proof to the contrary, by accepting a quote, placing an order, lack of protest against invoices within the 7-day due date or lack of protest against credit notes, the Buyer acknowledges and confirms its prior knowledge and acceptance of these General Terms and Conditions. The Buyer waives the applicability of its own general terms and conditions, however named.
1.2. These General Terms and Conditions shall only apply between enterprises, to commercial transactions which lead to the delivery of goods or the provision of services in the framework of a (part- or full-time) self-employed professional or economic activity.
1.3. If the Buyer and the Seller agree in writing that priority is given to the Buyer's terms of purchase, these General Terms and Conditions shall supplement them in so far as the Buyer's terms of purchase do not contain a contradictory clause.
1.4. The Seller reserves the right to change its General Terms and Conditions, subject to prior notification to the Buyer.
1.5. For the purpose of these General Terms and Conditions, 'Goods' shall be defined as follows:
a) All new machines that are sold by the Seller (hereinafter referred to as 'New Goods');
b) All second-hand machines that are sold by the Seller (hereinafter referred to as 'Second-Hand Goods');
c) All parts that are sold by the Seller (hereinafter referred to as 'Parts').
1.6. For the purposes of these General Terms and Conditions 'Services' shall be defined as follows:
all repair works carried out by the Seller on the specialised glass machines.
2. Orders and Deliveries
2.1 Orders shall only be valid if they have been expressly accepted in writing by the Seller. All offers and quotes by Seller, in whatever form, are without obligation subject to acceptance by the Seller.
2.2 The weights, dimensions, capacities, colours and other information which has been included in catalogues, advertisements, pictures, price lists and the website are only approximate. This information shall bind the Seller only insofar as this is expressly stated in the agreement. The Seller shall not be responsible for changes to the construction of the Goods carried out by the manufacturer.
2.3 The expected delivery date shall be agreed at the time of the order confirmation. The Seller shall try to respect this delivery date to the best of its abilities. The Buyer accepts that this delivery date is purely indicative. Failure to respect this delivery date shall in no case be a cause for dissolving the sales agreement, nor for any kind of damages. The expected duration of repair works or the expected date of delivery shall be given by way of indication only, and without guarantee. A possible delay shall in no case be a cause for dissolving the sales agreement, nor for any kind of damages.
2.4 Delivery shall be made at the Seller's premises, according to the applicable International commercial term 'ex works' 2020. In case of refusal to buy the sold Goods, refusal to collect the repaired Goods or a delay in the delivery or the collection due to the suspension of an order for which the Buyer or third parties are responsible, storage costs may be charged to the Buyer, without prejudice to the Seller's right to dissolve the agreement.
2.5 If, notwithstanding Article 2.4, it is agreed explicitly that the Seller shall arrange the shipment of the goods, then the Seller shall act as an agent only and both the costs and the risks of any loss, damage or theft occurring prior to, during or after the shipment shall be borne by the Buyer, except in case of intent, fraud, gross negligence or non-performance of the Seller's essential obligations.
3. Price
3.1 The price shall be that which is stated in the quote and/or the order confirmation. However, this shall at all times be subject to possible modifications if necessary as a result of the evolution of fixed and/or variable costs involved due to changes in its structure (wages and other social contributions, costs of transport, processing costs, levies, tax rates, energy costs, exchange rates, costs of materials, prices of raw materials, etc.) to the tune of at least 5% compared to the old price level for that component of the cost. In case of a price adjustment, this shall take place in proportion to the abovementioned change in the cost structure.
3.2 Unless indicated otherwise, all prices are in euro and exclude VAT. Unless explicitly stated otherwise in writing, all prices exclude transport costs (as applicable) as well as insurance, packaging, installation and assembly costs. Any special additional costs in relation with the import and/or clearance of goods to be delivered to the Buyer and any other government levies are excluded from the price and shall be borne exclusively by the Buyer.
4. Payment
4.1 Unless agreed otherwise, all invoices issued by the Seller shall be payable to its registered office within thirty (30) calendar days following the invoice date. Under no circumstances shall the Buyer be entitled to offset any amounts due by the Seller against any sum charged. Likewise, early payment shall not give rise to any discount. A payment shall be deemed to have been made as soon as the correct amount has been credited to Seller's bank account.
4.2. The Seller shall have the right, at all times, either to deliver and invoice the complete delivery or to invoice goods delivered in instalments per separate delivery.
4.3. The Seller is at all times entitled to suspend the delivery of Goods it holds for the Buyer in connection with the performance of the agreed work, as well as the delivery of Services to be performed, until all payments due by the Buyer to the Seller have been made in full.
4.4. To the extent that the Buyer fails to comply with any payment terms or other obligations or if the Buyer demonstrates financial insolvency or negative solvency, the Seller shall be entitled to suspend or postpone its obligations under (other) current agreements between Seller and Buyer.
4.5. In the event of non-payment of the invoice or any other amount due by the due date, all invoices drawn up against the Buyer shall become payable, irrespective of the payment terms agreed upon. In addition, in the event of non-payment, interest on arrears shall be due ipso jure and without notice of default in conformity with the provisions of the Act of 2 August 2002 on payment arrears in commercial transactions. In addition, the invoice amount payable shall be increased by 10%, with a minimum of EUR 62.50, by way of a flat-rate compensation, without notice of default.
4.6. If the invoice has not been paid by the 7th day after the registered sending of a reminder, the agreement can be dissolved by the Seller ipso jure and by means of a simple declaration sent by registered mail, or the Seller can invoke its retention of title, without any obligation to pay damages. In the event of dissolution on the part of the Buyer, the Seller shall be entitled to sell the Goods already produced to third parties, irrespective of whether the Goods are protected by intellectual property rights of the Buyer or a licensor of the Buyer. All this without prejudice to the Seller's right to claim damages from the Buyer in default.
4.7. The Buyer shall not be entitled to set-off. Bank and exchange charges connected to the collection of payments shall be at the Buyer's expense. Late payment, incomplete payment or non-payment of any single invoice due shall render any other invoice that is not yet due for payment, immediately due and payable. The use of promissory notes, cheques or permission to draw bills to cover the agreed price shall never be deemed a debt renewal of the original invoice, nor shall it limit or change any 'right of retention', agreement or territorial competence.
5. Cancellation or dissolution by Buyer
5.1 In case of cancellation or dissolution of the sales or repair agreement by the Buyer, the damage suffered by the Seller shall be estimated at a minimum of 15% of the sales or repair price, with a minimum of EUR 125.00, without prejudice to the Seller's right to provide proof of a higher amount of damage or to demand the performance of the agreement and without prejudice to the Buyer's obligation to pay for the services already provided by the Seller. From the date of the notice of default until the payment of the damage, interest on arrears shall be due on the amount of the damages at a rate of 10% per year.
6. Retention of title
6.1 The delivered Goods shall remain the Seller's property until the full price (principal, costs and interests) has been paid. In the meantime, the Buyer shall be liable for any loss, theft or damage to the Goods. As long as this reservation of ownership applies, the Buyer shall be prohibited from selling, letting, exchanging or letting others use the Goods, or giving them as a pledge, or removing them from the place in which they are stored. If the Buyer does transfer the delivered Goods to a third party while the Buyer has not yet paid the full price to the Seller, the Buyer's claim vis-à-vis the third party shall automatically be transferred onto the Seller, without prejudice to the Buyer's obligations. The Buyer shall inform the said third party without delay by registered letter of the Seller's right of ownership.
6.2 If the Buyer fails to meet its payment obligations to the Seller or if the Seller has valid reason to fear that the Buyer will fail to meet such obligations, the Seller shall be entitled to take back the Goods delivered under retention of title. The Buyer shall ensure that - if necessary on behalf of a third party (buyer) or custodian - at its first request, the Seller will be told where the Goods are located and that at the Seller's request the Goods will be returned to the Seller at the Buyer's cost and risk. After repossession, the Buyer will receive the market value of the goods as compensation, which will never exceed the original price paid by the Buyer and subject to deduction of any costs incurred by the Seller in connection with the repossession.
6.3 The Buyer shall preserve the Goods in the same state. The risks connected to the transferred Goods shall fall to the Buyer from the moment of delivery. This includes the risks in case of causes beyond one's control, coincidence or force majeure.
7. Force majeure
7.1 'Force majeure' refers to: any event which can reasonably be considered to be beyond the Seller's control, including, without limitation, strikes, lockout, delays or interruptions in transport, acts of war, revolt, fire, orders or regulations from the Government or the administration, inability to obtain fuel, supply problems, material scarcity or a shortage of products for manufacture, weather conditions which temporarily render performance of the agreement difficult or impossible, epidemics, travel bans, mistakes or delays on the part of the Seller's suppliers, acts of third parties, production errors in the material of one of the Seller's suppliers, etc., regardless of whether these problems occur on the Seller's premises or on the premises of the supplier from whom the Seller obtains the goods and without obligation on the part of the Seller to demonstrate the influence of this.
7.2 All cases of force majeure shall release the Seller from any liability for the non-compliance of its obligations. In case of force majeure, the Seller shall be entitled to, insofar as it has not been performed yet, either suspend the agreement due to the force majeure or cancel it without being liable for damages if the event of force majeure exceeds a period of three weeks.
7.3 If the Seller has already partially fulfilled its obligations when force majeure occurs, or can only partially fulfil its obligations, it shall be entitled to invoice the part already delivered or the part deliverable separately and the Buyer shall be obliged to pay this invoice as if it were a separate agreement.
8. Liability
8.1 Any complaints in connection to the delivered Goods or Services and/or disputed invoices must be addressed to the Seller by registered mail within a period of 7 days. This 7-day period shall be calculated from the delivery date or the invoice date (as the case may be), insofar as the information on the invoice corresponds to the undisputed delivery documents.
8.2 Hidden defects in New Goods and Parts must be notified to the Seller by registered mail within 7 days from their discovery. Claims in relation to hidden defects must be filed within 1 month after the discovery of the defect or after the Buyer can reasonably be expected to have discovered the defect. Complaints and/or disputes, of whatever nature, shall not entitle the Buyer to suspend the fulfilment of its obligations towards the Seller, nor to cancel the non-protested parts of the order or delivery. The maximum liability of the Seller shall in no case exceed the price of the protested parts of the order. In the event that the Seller does not comply with its obligations, the Buyer shall have the choice between, on the one hand, the replacement or repair of the defective or non-compliant Goods and, on the other hand, the compensation of the damage suffered by the Buyer, limited to the price of the relevant Goods. With regard to Parts, the compensation for hidden defects shall in any event be limited to the Part itself. The Seller is in no way responsible for the proper functioning of the machine when purchasing Parts.
8.3 Second-Hand Goods shall be deemed to have been sold in the state they are in. The Seller shall be under no obligation to indemnify and the Buyer purchases at its own risk, except in the case of gross negligence, wilful misconduct or non-performance of the Seller's essential obligations.
8.4 All of the Seller's obligations under this Article 8 shall lapse if the defects or imperfections of the Goods delivered as alleged by the Buyer are the result of (i) any improper, negligent or incompetent use or management of the Goods by Buyer, its servants or third parties or, (ii) any modification of the delivered goods by the Buyer, its servants or third parties not agreed to by Seller or (iii) from extraneous causes such as, but not limited to, fire or water damage.
8.5 The Seller does not guarantee the quality of his Goods and Services in case of abnormal use, poor maintenance, modification of the Goods, (dis)assembly or repair by the Buyer. Except in cases of fraud or intentional error, the Seller shall not be responsible for incidental or consequential damage, including, without limitation: damage to property, financial loss, loss of profit, staff costs, damage to third parties, loss of revenue, etc., caused by the Seller or its agents. The maximum liability of the Seller shall not exceed the purchase price of the Goods or the cost price of the Service.
9. Severability
9.1 Insofar as possible, the provisions of these General Terms and Conditions shall be construed in a way that is valid and enforceable according to applicable law.
9.2 The (partial) nullity, unenforceability, non-reliance or impracticability of either provision of these General Terms and Conditions does not affect the application or validity of the remaining provisions.
9.3 Parties shall endeavour to replace any provision that is deemed to be null and void, unenforceable, non-reliant or impracticable by a provision that reflects the parties' intentions.
10. Applicable law and competent jurisdiction
10.1 All our agreements are exclusively governed by Belgian law, excluding Articles 1162 and 1602, par. 2 of the Civil Code and the Vienna Sales Convention. In case of a dispute relating to an agreement between the Buyer and the Seller, whatever the nature and place of the delivery, only the Courts of the district of Leuven shall have jurisdiction.