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General sales conditions Constructiewerkhuizen De Meyer NV

Scope and acceptance general sales conditions

1. All our sales, deliveries, works and services are exclusively governed by these general conditions. Deviations to our general conditions are only valid if expressly agreed to in writing. The possible legal invalidity of one or more the present general conditions shall in no event prejudice the legal validity of the remaining provisions.

2. Acceptance of these general terms and conditions, either tacitly or explicitly, also implies that the Customer completely waives the application of his own general conditions.

Establishment of the agreement and amendments

3. Unless otherwise agreed to in writing, our tender are entirely non-binding, and are only valid for the term indicated in the tender. The agreement shall only be established following our written order confirmation, or at the start of the implementation of the order in question, or at the moment the customer signs the documents which refer to the delivery of goods or services.

4. Our prices, as indicated in our tender, which are either unit prices or fixed prices, were established on the basis of the prevailing tariffs, official rates, wages and social charges on the date the quote was drawn up. They are always liable for revision by ourselves, without the prior agreement of the customer, if the market prices or the parameters for their calculation have risen by at least 3% at the time of invoicing.

5. Work in addition to the agreement shall be notified during or after the implementation, and shall be deemed to be accepted by the customer barring any written contestation within at the latest 8 working days following notification.

Cancellation and compensation

6. Any cancellation of orders must take place in writing. If the customer cancels an order, they shall pay the following cancellation fee, taking into account that we always supply customised work:

a. In the event of cancellation before the implementation of the order: 20% of the total amount of the order.

b. In the event of cancellation after commencement of the implementation of the order: the actual damage increased by 20%.

The due cancellation compensation shall in any case at least be equivalent to the already invoiced amount.

Delivery and risk

7. Unless explicitly agreed to otherwise in writing, delivery terms are only provided for information purposes, and are therefore non-binding. Delays in delivery shall not entitle the customer to claim damage compensation, nor proceed to or claim the dissolution of the agreement. Nonetheless, any delays in delivery shall be notified to the customer as quickly as possible. Modifications to orders shall automatically give rise to the annulment of the predetermined anticipated delivery term.

8. The risk for the goods transfers to the customer at the moment the goods leave our premises, even if it only concerns a partial delivery, or the goods need to be installed by us, or the dispatch costs are included in the price, or the goods are transported by us.

9. If we deliver the goods, or arrange for their delivery, our liability in this respect is in any case limited to the intervention of our insurers, for which the policies can be consulted on first request.

Defects and guarantees

10. The customer shall immediately carry out an initial visual verification upon collection, delivery and/or installation. Under penalty of inadmissibility, the customer must inform us in writing, at the latest within 48 hours, of any visible defects after collection, delivery and/or installation, and in any case before commissioning, whereby the defects must be described in detail.

11. The guarantees provided only cover recognised construction faults, and are limited to the simple replacement of components which exhibit defects. For parts, components or equipment which are not manufactured by us, only the guarantee of our suppliers, subcontractors or producers shall apply. We are not liable for the compensation of damage incurred by machine or company downtime, as a result of construction faults.

12. Under penalty of inadmissibility, all complaints pertaining to hidden defects must be communicated to us by the customer within 48 hours after the discovery thereof, via registered mail.

13. Any claim on the warranty shall be voided in the event of processing, incorporation, modification, transformation, or repair by the customer or by third parties in cases of abnormal or exceptional use, loading and/or wear of the goods/works.

14. Lodging a complaint shall not entitle the customer to suspend his payment obligations.

Limitation of liability

15. The liability which we may incur as a result of non-compliance or inadequate compliance with an obligation in the context of the agreement concluded by us is limited to the liability which is compulsorily imposed by law. This liability arises from an obligation of means, and is in any case limited to 10% of the value of the agreement in question, excluding VAT and costs, whereby we retain the right to either replace the goods or indemnify the value thereof.

16. In no event can we be held liable for:

a. All possible indirect damage which the customer may incur as a result of non-compliance with the agreement, including for example financial and economic loss, loss of profits, an increase in general costs, disruptions to planning, loss of customers, reputational harm, etc.

b. Damage which the customer may incur as a result of claims by third parties.

c. Defects that are directly or indirectly caused by an act on the part of the customer or a third party, regardless of whether these are caused by an error or negligence.

d. Faults which are attributable to erroneous, late or incomplete information (including choice of materials or working method) as communicated by the customer.

17. Our liability shall always and irrevocably remain limited to the intervention of our insurers, for which the policies can be consulted on first request.

Retention of title

18. Until the complete execution of all claims which arise for us under the agreement with the customer, including incidental damage claims, the delivered goods/works which were supplied by us shall remain our property, even after their incorporation, at the customer's risks, and as such can be reclaimed or taken back by us without any formality in the event of non-payment or late payment.

19. Notwithstanding this express retention of title, all risks pertaining to the goods shall be transferred to the customer from the moment of delivery, as specified in article 8.

20. If it is agreed that the customer shall collect the goods himself at the agreed collection point, and does not collect the goods on the agreed date, the goods shall be stored pending delivery or collection, at the risks and costs of the customer.

21. Until the moment that ownership of the sold goods is effectively transferred to the customer, (i) the customer is expressly prohibited from using the delivered goods as a means of payment, from pledging them as collateral, or encumbering them with any other security rights; (ii) the customer shall apply a designation to the goods which clearly and legibly states that the supplied goods remain our property. Insofar as necessary, the present clause is deemed to be replicated for every delivery. The customer undertakes to notify us immediately via registered mail of any confiscation of the goods sold, by a third party.

22. The customer has a duty of care with regards to the goods falling under the retention of title clause, and should store said goods in perfect condition in a suitable and clean place, in accordance with the highest standards and security requirements which prevail in the sector.

Payment

23. We reserve the right to request the customer to pay deposits, before or during the implementation of the agreement, for the execution of the order. If the customer does not respond to our request in this respect, we reserve the right to suspend the further implementation of the agreement with the customer, until the customer has complied with our request, or consider the agreement with the customer as dissolved to the detriment of the customer, without prior judicial intervention and without prior notice of default, in which case the customer shall be charged a cancellation fee in accordance with article 30.

24. Unless otherwise stated on the invoice, our invoices are payable at our registered offices within 14 days from the invoice date. Our prices are net prices, meaning that a discount for cash payment is not applicable. All taxes, charges or other costs pertaining to the implementation of the agreement shall be borne by the customer. Deductions for guarantees or debt set-offs shall only be authorised after written agreement.

25. Payments made by the customer to us shall in the first instance be booked to the costs payable by the customer, thereafter to the payable interest, and only in the final instance to the principal sum due.

26. If invoices are not paid by the due date, late-payment interest of 10% per annum shall lawfully be applied without any prior notice of default, from the due date of the invoice until the date of full settlement thereof (including costs and interest). In addition, a fixed fee of 15% of the outstanding amount shall lawfully be applied without any prior notice of default, with a minimum of 200 EUR, without prejudice to our right to prove higher damages or costs. In the event of late payment of an invoice, all other claims not yet due against the customer shall lawfully fall due, without prior notice of default.

27. If an invoice is not paid by the due date, we reserve the right to suspend the work to be completed and/or delivery of the (remaining) goods until the invoice has been paid, or to request guarantees, without any compensation being due on our part. We shall determine ourselves when the works/deliveries can recommence, without any compensation being due for delays. If we incur damage due to this suspension (either direct or indirect), or incur costs, the customer shall indemnify these.

Non-performance on the part of the customer and dissolution of the agreement

28. We reserve the right to consider the agreement with the customer as dissolved, to the detriment of the customer, without prior judicial intervention and without prior notice of default, in the event of bankruptcy, postponement of payment or manifest insolvency on the part of the customer, as well as in the event of any change whatsoever in the legal form of the customer.

29. In the event of non-compliance by the customer with his payment obligation, we reserve the right firstly to postpone the further implementation of the specific, or any other, agreement with the customer until full payment by the customer of all arrears, and secondly to consider the agreement as dissolved, to the customer's detriment, without prior judicial intervention and without prior notice of default.

30. In all cases where the agreement with the customer is dissolved, to the detriment of the customer, the customer undertakes to pay the cancellation fee within 8 days after notification of the dissolution, which is estimated at a flat rate of 20% of the value of the agreement in question, without prejudice to our right to prove higher damage and costs.

Force majeure

31. In the event of force majeure affecting us, we are entitled to suspend implementation of the agreement, or to dissolve it in whole or in part, without the customer asserting any right to compensation of costs, damages and interest, etc.

32. Force majeure pertains to all circumstances which are not attributable to an error on our part, and which makes the implementation of the agreement impossible, or hinders it, or delays it, including but not limited to, interruption of supplies of raw materials, strikes, lock-out, fire and delays in production or transport for whatever reason, import or export restrictions or other measures of the government. The non-attributable and unavoidable character of the above-mentioned circumstances shall always be deemed to be fulfilled.

Intellectual rights

33. We retain the copyrights and all intellectual rights on the documents, technical descriptions, plans, drawings, models, samples, photographs made by us, regardless of whether costs were charged to the customer for the production thereof. As long as these elements are not made publicly available by us, they may not be copied without our prior written approval, used for purposes other than those for which they are intended, or shown to third parties, and must be immediately returned to us on simple request. We are entitled to use these elements for publicity purposes, without any compensation being due to the customer.

34. Any infringement of article 33 by the customer shall give rise to the payment of fixed damage compensation amounting to 10% of the price of the goods or services, without prejudice to our right to prove higher damages or costs.

Governing Law and Jurisdiction

35. The agreements are governed by Belgian Law. The Vienna Convention is not applicable.

36. Any dispute between the parties in connection with the interpretation or implementation of their agreements shall belong to the exclusive territorial competence of the judicial district and the subsection of the location of the registered office of DE MEYER NV. However, the latter retains the possibility to submit the case, as the claimant party, to any other district court of its choice.

37. The Dutch version takes precedence over all other versions.

© 2018 De Meyer - Frank Van Dyckelaan 28 - 9140 Temse - Tel +32 3 766 33 33 - info@demeyer.be
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