GENERAL CONDITIONS OF SALE AND DELIVERY COLLETT & VICTOR BV
1. Applicability
1.1. Unless expressly agreed otherwise in writing, all (contractual) relations of COLLETT & VICTOR BV, with its registered office at 8870 Izegem, Kapelstraat 2 and registered in the Crossroads Bank for Enterprises under the number 0453.220. 424 (RPR Ghent, Kortrijk Division) ("COLLETT & VICTOR"; COLLETT & VICTOR is hereinafter also referred to as "we" or "us" or "our"), governed by these general terms and conditions of sale and delivery (the "General Terms and Conditions") and these General Terms and Conditions are therefore, inter alia (without limitation) applicable to all our offers, agreements, performances, deliveries and invoices, to the exclusion of any (general) terms and conditions of the client (the "Client"; the Customer is hereinafter also referred to as "you" or "your"), even if they would state that they would prevail and/or would be attached to an order form or any other document.
1.2. In addition to the explicit and written acceptance of these General Terms and Conditions, by, inter alia, placing an order, signing an agreement, commissioning the goods, having our services performed and/or accepting an invoice, you shall be deemed to have accepted these General Terms and Conditions and to have expressly and irrevocably waived any of your own (general) terms and conditions, regardless of when and in what form they may have been communicated by you. In any event, these General Terms and Conditions shall always take precedence over your (general) terms and conditions.
1.3 Deviations, amendments and/or additions to these General Terms and Conditions are only valid and can only be invoked against us following our explicit, prior and written acceptance. Failing that, these General Terms and Conditions shall remain unchanged and unaffected.
2. Studies, quotes and agreements
2.1. All our price calculations and proposals are merely indicative and non-binding, are for information purposes only and do not bind us, unless expressly stated otherwise by us. They do not constitute an offer and can therefore be changed by us at any time without prior notice.
2.2 You can place your orders and/or assignments by telephone, by post or electronically. If you place an order and/or assignment by telephone, you must always confirm it by e-mail or electronically. Every order and/or assignment placed by you, regardless of the manner in which it was placed, commits you immediately and is irrevocable, irrespective of whether or not an advance has been paid. We are always entitled to request an advance payment. The advance payment you make will be deducted from the order price. We are only bound by your order and/or assignment after we have confirmed it explicitly and in writing. Even your electronic orders must always be confirmed by us explicitly and in writing before they bind us. The order confirmation - subject to unforeseen circumstances (cf. article 6.2.) - counts as the contract concluded between you and us. Any changes or additions to an order must be requested in writing and will only be accepted after our explicit and written approval, which may be conditional on a price adjustment. The same applies if work cannot be carried out within the specified time frame for reasons not related to us.
2.3. Measurements given in our proposals are to be considered provisional and approximate. Should a final measurement subsequently reveal a difference with the provisional measurements, we reserve the right to adjust the agreed price proportionally.
2.4. All studies, plans, documents, sketches, drawings, samples and designs remain our property and are protected by intellectual rights, unless expressly agreed otherwise in writing. When handed over to you, they may not be misused either by you or by third parties. You are liable for any misuse. We reserve the right to claim damages. This shall be at least twenty per cent (20%) of the price agreed with you. At the first request, the above-mentioned documents must be returned.
2.5. Unless expressly agreed in writing to be part of our assignment, the proposals formulated by us can never be invoked by you against us as an analysis by us preceding your order and/or the assignment. Unless expressly agreed otherwise, you yourself shall determine which goods are to be manufactured and/or supplied by us and you yourself shall bear the responsibility of your choice.
2.6. With your order and/or the assignment, you undertake always to provide us with all useful and necessary data and/or information for the manufacture and/or delivery of the goods, which you know, or should know, are necessary and/or useful for the execution, and to provide all requested cooperation to this end, failing which you will not be able to invoke defects resulting from the failure to provide this information and/or cooperation. You are also responsible for the correctness and completeness of the information provided by you or your agents, which we will not verify. We are entitled to have complete confidence that the information relating to your order and/or assignment, in terms of content and form, which we receive from you or your assignee is correct. In any event, we shall never be liable for conception errors or for the characteristics, properties, possible shortcomings or defects in the materials supplied by you that we process.
3. Deliveries, work and deadlines
3.1. Any predetermined delivery, execution or other deadlines are always indicative, are given purely by way of information and are always to be interpreted approximately. In the event of force majeure (cf. article 7 of these General Terms and Conditions), we may postpone or, if necessary, cancel the works or deliveries, without any right to compensation for you. Any delay shall never give you the right to compensation. Nor can it be invoked by you to justify a full or partial cancellation of the order. Nevertheless, we will make every reasonable effort to perform the deliveries and works on the predetermined dates.
3.2. Unless expressly provided otherwise in writing in our order confirmation, our goods shall always be deemed to have been sold, received and accepted in our warehouses. The time of delivery is as soon as the goods leave the warehouse or are ready for dispatch / collection there. The risk of loss and/or damage to our goods is transferred at that time. If the goods have not been collected by you on the delivery date, for whatever reason, they shall remain (temporarily) in our warehouse at your expense and risk, including the risk of fire, theft, accident or force majeure, and we shall be entitled to invoice the goods already. You shall bear all costs and risks related to the transport of the goods from our warehouse to the desired destination, even in case of "carriage paid" delivery and even if the transport is insured by our trucks. If necessary, you must ensure that the goods can be delivered immediately upon arrival at the destination and safely stored. Useless travel costs and excessively long waiting times (more than 15 minutes) will be charged.
3.3. Unless expressly agreed otherwise in writing, we assume that the works will be done in one phase. If the works are later divided into several phases at your request, a supplement may be charged, in which case, among other things, storage costs, additional travel costs, handling costs and price increases will be taken into account. The same applies if the execution of a work is delayed or postponed for reasons not attributable to us.
3.4. We reserve the right to carry out partial deliveries and invoicing, without you being able to refuse this or delay payment for this reason. We will forward a supplementary confirmation for the remaining part in such a case. Article 6.2 of these General Terms and Conditions also applies to any partial delivery.
3.5. The damage, which would be caused to us or which we would cause to you or to third parties, due to the poor condition of the access roads will be charged to you.
3.6. All goods delivered to you shall remain our property until all amounts due to us by you under the contract (the principal sum, costs, interest and, if applicable, damages) have been paid in full. This right also applies if the goods delivered by us have already been transferred or placed with third parties or integrated or processed with other items, whether or not belonging to you.
3.7. The site must be made normally accessible by you, at your expense, to enable the normal execution of the works in a safe manner (the site + access roads to the site must be free of all obstacles (such as, for example, sewers, electrical lines, citernes, cellars and the like), passable and accessible, and this taking into account the works to be carried out). Unnecessary travel costs and excessively long waiting times (more than 15 minutes) will be charged. Not only will you be liable for compensation for waiting time, loss of earnings and other possible damages suffered by us, but you will also indemnify us for all claims for damages and repair costs resulting from your failure to comply with this clause. You shall provide, at your expense, the necessary power and water supply in the vicinity of the site.
3.8. The masonry (concrete, walls, floors, etc.) shall be in clean and well-finished condition (and according to level).
3.9. If any obstacles occur or manifest themselves during the execution of our works, independent of our will, the additional cost of these changes and additional works shall be borne by you. Delays caused by the non-readiness of the assembly site or the goods to be processed according to our specifications will be charged on a cost-plus relocation basis.
3.10 We are entitled to have ourselves replaced by a third party in the execution of our works without prior notice.
4. Liability deliveries
4.1. You shall inspect our goods and/or works immediately upon delivery.
Any defects which were present and which you could reasonably discover after inspection (such as damage, incompleteness, error or any other visible defect or non-conforming delivery), shall be deemed to have been accepted by you if you do not object by registered letter within five (5) days of the delivery of the goods in question, under penalty of cancellation. After the expiry of this period, your complaint will no longer be considered.
The warranty period for hidden defects six (6) months from the delivery of the goods concerned. Complaints regarding hidden defects must be notified by registered letter within eight (8) days from the discovery of the hidden defect, but in any case within eight (8) days after you should have discovered the defect, all under penalty of lapse. The summons is only admissible if it is served within the aforementioned guarantee period of six (6) months. The warranty period relating to the structure of the goods ('the carcass') is extended to a maximum of five (5) years. On the other hand, we do not offer any guarantee on the fabrics. In any case, liability for the goods delivered and used is limited to the warranties provided by the manufacturer. You must immediately give us the opportunity to investigate a complaint by placing the goods at our disposal for inspection, on pain of forfeiting the right to hold us liable for a non-conforming delivery, or visible or hidden defect. Under no circumstances can a complaint justify a suspension of payment.
4.2. In case of our liability, we shall never be obliged to any other or more compensation than, at our discretion, either the repair or if necessary replacement, or the refund of the defective (parts of the) goods. In the event of reimbursement, our liability shall in any case be limited to the invoiced value, excluding VAT and costs, of the defective goods. The repair or replacement of the defective (parts of the) goods does not trigger a new warranty period.
We cannot be held liable for alleged defects in goods delivered and/or work carried out by us if (i) they are the result of ordinary wear and tear, (ii) they are the result of your wilful damage or negligence or you do not use the goods for which they are normally intended, (iii) you have not followed the instructions in the technical documentation provided and/or (iv) you modify or replace the goods or part of the goods and/or (v) result from the characteristics, properties, possible shortcomings or defects of the goods or materials supplied by you, which were processed by us.
4.3. Under no circumstances can we be held liable for any faults, defects in substances/materials supplied by you or your appointees, which we process at your request, nor for their quantities or cutting losses.
4.4. Shall not be considered a defect in conformity, as a visible or hidden defect: slight differences in colour or slight differences in dimensions, insofar as these are unavoidable from a technical point of view or are generally accepted or inherent to the materials used.
4.5. We guarantee that the goods conform to our current specifications at the time of delivery. We otherwise make no other express or implied warranty or undertaking in respect of the goods sold, including (but without limitation) any warranty or undertaking as to suitability for a particular use by you.
4.6. Unless expressly stipulated otherwise in writing, our assignment is an obligation of best efforts.
We shall only be liable in the event of wilful misconduct, obvious gross negligence, fraud and/or deceit.
Should our liability be withheld, you expressly accept that, barring wilful misconduct, deceit or fraud:
- we will not be liable for any loss of profits, indirect, incidental or consequential damages or losses (including but not limited to: punitive or exemplary damages, damages suffered by third parties, loss of income, loss of use or lost products, contracts, customers, goodwill, lost time, data, image damage, business interruption or downtime or any third party claims);
- our liability, on whatever grounds, to you for all possible damages shall in any event be limited to a maximum of the invoiced value, excluding VAT and costs, at least to that part of respectively the order or the order to which the liability relates, whereby our total liability can in no event exceed the amount covered by the liability insurance taken out by us, with a maximum of EUR 20,000.00. Our insurance policy and policy conditions are available for inspection upon first request.
4.7. Nothing in these General Terms and Conditions limits or excludes our liability for any liability which cannot be excluded or limited by law.
4.8. You shall indemnify us in full against all claims by your customer, on whatever grounds.
5. Sanctions for the non-performance of contractual obligations
5.1. In the event of cancellation and/or breach by you of an order and/or assignment, even partial, we may opt either to execute the order and/or assignment and claim an advance of ten per cent (10%) on the parts of the order and/or assignment that have not yet been executed, or to dissolve it, without prior judicial intervention or further notice, and with an additional compensation for cancellation payable by you equal to thirty per cent (30%) of the agreed price (excluding VAT). This is without prejudice to our right to claim higher damages if the actual damage is higher. Parts of orders and/or assignments already executed or materials already purchased or produced, as well as any other costs incurred, shall always be reimbursed at the agreed price and, where applicable, the aforementioned, flat-rate cancellation compensation shall be calculated on the price of the parts of the order and/or assignment not executed. The customisation ordered by you cannot be taken back by us under any circumstances.
5.2. If an invoice is not paid on time, we reserve the right to suspend all deliveries, work and obligations towards you until the invoice is paid, without any compensation being payable by us. We will decide when we will resume the work, without any compensation for delay. If we suffer damage (both direct and indirect) as a result of this suspension, you will have to compensate us for it. If necessary, we may consider the agreement with you terminated ipso jure and without prior notice of default, to your detriment, and if necessary claim compensation for damages. In that case, compensation is due as stipulated in Article 5.1. This also applies in case a reasonable fear exists that you will not fulfil your obligations, including but not limited to apparent insolvency, dissolution, liquidation or (imminent) bankruptcy.
5.3. If invoices are not paid on time, interest of eight per cent (8%), as well as a flat-rate compensation of ten per cent (10%) of the amount still due with a minimum of EUR 125.00 shall be payable from the due date of the invoice by operation of law and without any prior notice of default, without prejudice to our right to claim higher damages if our loss is higher. In addition to the negligence interest and the flat-rate compensation, all other recovery costs will also be payable in full by you.
5.4. In case of late payment of an invoice, all other outstanding claims against you shall become immediately due and payable by operation of law and without prior notice of default.
5.5. In all cases of contractual default, we shall be entitled to exercise a right of retention on all materials and goods that you have placed in our possession, for processing or otherwise. We may continue to exercise this lien until all consequences of your contractual default have been remedied.
6. Payment
6.1. The prices due for our goods and/or works are those indicated in the order confirmation.
6.2. In case of changes concerning wages, social security charges, transport costs as well as in case of changes in the prices of raw materials/construction materials, or economic fluctuations, we reserve the right to change our prices stated in the order confirmation and/or contracts (even after confirmation/signing of the binding order confirmation or contract):
Any price changes shall always relate to a total of up to eighty per cent (80%) of the total price.
For price changes, the following price revision formula is used:
P = p {a + c (I/i)}
P = the new price
p = the original price provided for in the quotation/contract
a = the percentage of the price not eligible for revision (a >= 0.20)
c = the percentage of the cost item: either (i) the cost of the relevant construction materials/raw materials, or (ii) the relevant labour costs/social charges, or (iii) the relevant transport costs, in the total price (a + c = 1)
I = the new index
i = the original index (the month preceding the date of the offer/contract)
For the indices (I and i) apply according to the cost item involved (cfr. supra): either (i) Agoria index (for the raw materials/construction materials listed by Agoria), or (ii) the Mercurial index most favourable to us (for all other raw materials/construction materials (not listed by Agoria), or (iii) the S-index most favourable to us - as published by the FPS Economy - (for wage costs and social charges), or (iv) the price index for services most favourable to us - as published by Statbel - (for transport costs).
The above formula is applied separately per cost item and per index for any price changes. The price changes (difference new price/ original price) are added up, if necessary, to arrive at the total changed price.
6.3. A deviation from the agreed prices is furthermore possible (i) in the event of additional work or changes to the initial order and (ii) if measurements establish different dimensions as stated at the time of the order. These price adjustments do not entitle you to cancel the order.
6.4. Unless expressly provided otherwise in writing, the indications of our prices are always Ex Works., exclusive of VAT and any other taxes, levies and/or costs, such as among others (without limitation) government levies, costs of insurance, costs of transport and packaging. These costs are always at your expense and will be shown separately on our invoices. If the rate of tax (VAT or other) is changed before the invoicing of the balance of the price, the price of the works yet to be invoiced will be adjusted accordingly, even if a price including tax was agreed upon. Any costs and losses due to exchange rates shall also be borne by you.
6.5. You shall accept electronic invoices if we wish to issue such invoices and inform you thereof prior to sending such invoices.
6.6. Performances shall be invoiced as agreed in the quotation. Unless otherwise provided, these performances shall be invoiced according to the progress of the works.
6.7. Unless expressly stipulated otherwise in writing in our invoice, our invoices are always payable at our registered office, in euros, in cash, net and without discount, and within fifteen (15) days of the invoice date.
6.8. If an invoice at your request is to be drawn up in the name of a third party, you shall remain jointly and severally liable with such third party for the performance of the payment and all other obligations arising from this agreement between the parties.
6.9. All our invoices shall be deemed to have been accepted without reservation if they are not disputed with reasons by registered letter within five (5) days of receipt, stating the invoice date and number.
6.10. For works carried out in stages over a certain period, we shall be entitled to invoice the works in stages.
6.11. As security for all outstanding debts, you grant us a lien on (i) the goods purchased from us and paid for that are in your possession (in stock) and (ii) on your claims against your customers for goods you have purchased from us. In case of non-payment after registered notice of default, we are entitled to enforce these pledges without prior, judicial intervention.
6.12. We shall always be entitled to set off any claim against us against our outstanding claim against you, irrespective of whether it is already certain, fixed or due or related at that time.
7. Force majeure
7.1. We shall not be liable for any delay or failure to perform our obligations if this is due to force majeure.
7.2. Force majeure includes any event or circumstance which does not reasonably occur or could not have been foreseen, or which is reasonably beyond the control of the affected party; in any case, but not limited to: the inability to perform the offer/work as a result of natural disasters, nuclear or chemical explosions, measures or regulations issued by an administrative body or other part of a government (such as transport, import, export or production bans) electricity blackouts, limited supply of raw materials on the market, changes in regulations relating to mandatory stocks, breakdowns in (telephone) networks, fire, strikes of all kinds, supplier failures, boycotts, wars and armed conflicts.
Force majeure shall also include circumstances which affect the supply of goods to such an extent that the performance of our obligations can only take place with delay, partially, or not at all.
7.3. In case of force majeure, we shall take all reasonable measures to terminate the temporary force majeure situation and immediately resume performance after termination of the force majeure situation, unless explicitly agreed otherwise. This is a best-efforts obligation.
7.4. If the force majeure situation lasts longer than sixty (60) days, we are entitled to terminate the order and/or assignment, without prior judicial intervention and without any compensation being due.
8. Final provisions
8.1. The possible nullity of any of these clauses or any part thereof shall not imply the nullity of the other parts thereof or of these General Terms and Conditions or of other clauses contained therein. Clauses judged to be excessive will not be null and void, but will be mitigated to what is legally possible and closest to what is sought in the said part or clause.
8.2. Any waiver of rights from the General Conditions, can only be made in writing, unless expressly provided otherwise in the General Conditions. The mere fact that a party does not or does not immediately exercise any right under the General Conditions or allows the other party a period of time to perform its obligations under the contract shall not constitute a waiver of the relevant right on the part of such party.
8.3. Unless expressly provided otherwise in these Terms and Conditions, no remedy, fee or penalty expressly described in these Terms and Conditions shall be exclusive and exclude any other remedy, fee or penalty available under these Terms and Conditions or applicable law. All remedies, indemnities or penalties provided in these General Terms and Conditions are cumulative and shall apply without prejudice to any remedies, indemnities or penalties available under applicable law.
8.4. We are entitled to assign our rights and obligations to third parties without your consent. You are only entitled to assign your rights and obligations upon our express and written consent.
8.5. The parties acknowledge and declare that each clause of these Terms and Conditions is truly willed by them and does not create an (apparent) imbalance between the rights and obligations of the parties.
9. Applicable law and exclusive jurisdiction
9.1. The agreements between you and us are governed by Belgian law. The Belgian Courts have exclusive jurisdiction. The Court of Ghent, Kortrijk division has exclusive jurisdiction.
