Terms and Conditions
1. Subject Matter
1.1
For the purposes of these general terms and conditions, “Seller” means: “Group BRS, with its registered office at DW Coatings BV, 1930 Zaventem, Weiveldlaan 41, registered in the RPR under company number 0646.849.349.”
1.2
Without prejudice to the applicability of any special terms and conditions, which shall take precedence over these General Terms and Conditions, these General Terms and Conditions apply to any service as well as to any sale and delivery of goods (the “Goods”) by the Seller to the Buyer under any agreement between the Seller and the Buyer (“Agreement”). Unless otherwise agreed between the Seller and the Buyer, these general terms and conditions apply to the Agreement. They automatically take precedence over the Buyer’s terms and conditions of purchase. The possible invalidity of one or more provisions of these general terms and conditions shall not affect the applicability of all other clauses.
1.3
In the event of any conflict between the order confirmation and these general terms and conditions, these general terms and conditions shall prevail, unless the order confirmation expressly deviates from the general terms and conditions.
1.4
The Agreement is concluded immediately upon the Seller’s submission of the signed order confirmation, to which these general terms and conditions are attached.
2. Terms of Payment
2.1
All prices are exclusive of VAT, taxes, packaging, handling, and shipping costs, unless otherwise specified.
2.2
All invoices are payable in cash at the Seller’s principal place of business. Payment must be made within the time period specified on the order confirmation. In the absence of such a specification, payment must be made in cash within 30 days of the invoice date. The Goods will be invoiced immediately upon the date the Goods leave the Seller’s premises; however, the Seller reserves the right to charge a deposit, in which case delivery will take place only after payment of the deposit.
2.3
If the Seller agrees to deliver the Goods ordered by the Buyer, 33% of the purchase price must be paid upon ordering the Goods, 33% upon delivery of the Goods, and 33% upon the actual installation of the Goods.
2.4
The Seller reserves the right not to deliver Goods as long as any amounts due under any agreement with the Buyer have not been paid (in full), including any late-payment interest and lump-sum damages still owed, as provided below.
2.5
In the event of non-payment or incomplete payment of an invoice, the buyer shall automatically, and without notice of default, owe interest on the unpaid amounts at the interest rate specified in the Act of August 2, 2002, on Combating Late Payment in Commercial Transactions, plus seven percentage points, with a minimum of 12% per annum, from the date these amounts become due until the date of full payment.
2.6
Furthermore, in the event of failure to make (full) payment of the amount(s) due, in addition to the amounts due at that time and in addition to any accruing late-payment interest, a lump-sum compensation equal to 12% of the invoice amount, with a minimum of 200 euros per invoice, shall be automatically due without notice of default, without prejudice to the Seller’s right to claim additional compensation if it proves greater damages.
2.7
Under no circumstances shall the buyer have the right to set off any amounts (allegedly) owed by the Seller to the buyer against any amounts (allegedly) owed by the buyer to the Seller.
3. Delivery of Goods
3.1
The production or delivery times for Goods specified by the Seller are approximate. Exceeding the anticipated production or delivery time shall under no circumstances result in the termination of the Agreement. However, the Seller shall notify the Buyer as soon as possible of any delay in performance or delivery of which the Seller becomes aware. Changes to orders automatically render the previously estimated performance or delivery times null and void.
3.2
Delivery of the Goods takes place at the Seller’s principal place of business at the time the Goods are made available to the Buyer there. The Goods are transported at the Buyer’s expense and risk. Any leftover materials belonging to the Buyer that have not been picked up within 14 days of delivery will be scrapped.
3.3
The buyer must generally ensure that all necessary precautions have been taken at the delivery site and that all conditions have been met so that the delivery can take place under proper conditions and the installation work can begin immediately, without the need for prior verification. Any damage caused by failure to do so shall be borne exclusively by the buyer.
3.4
If the work is to be performed in accordance with plans drawn up by the buyer, the Seller’s liability shall in any case be limited to strict compliance with the specifications set forth in those plans.
3.5
The Buyer shall inspect the Goods immediately upon delivery and shall, within 7 days of delivery, report all visible defects to the Seller in writing and provide the Seller with supporting documentation of such defects, after which the Seller shall, in accordance with its internal procedures, review the Buyer’s supporting documentation and promptly inform the Buyer of the further handling procedure. Any visible defects that are not reported to the Seller in writing within the aforementioned period shall be deemed to have been accepted by the Buyer.
3.6
The Seller has the right to suspend delivery of the Goods if any amounts owed by the Buyer in connection with the relevant or other order confirmations have not been paid in full, until such time as all outstanding amounts have been paid in full. The Seller has the same right to suspend delivery if, for any reason, the Seller has doubts about the Buyer’s creditworthiness and/or if it appears that the Buyer is not (sufficiently) creditworthy, taking into account the order placed by the Buyer as set forth in the order confirmation.
4. Cancellation of the order
4.1
Without prejudice to the application of these general terms and conditions, in particular Article 4.2 thereof, the buyer has the right to cancel its order prior to delivery of the Goods. Such cancellation must be made in writing; the date on which the Seller receives the cancellation shall determine the financial settlement set forth below.
4.2
If the buyer cancels all or part of their order after the date the order confirmation was sent, they will be charged 20% of the total price (including VAT). If the buyer cancels all or part of their order on the delivery date itself, they will be charged 100% of the total price (including VAT). After delivery, cancellation is no longer possible.
5. Risk
5.1
All risks, of any nature whatsoever, from the moment the Goods leave the Seller’s premises, shall be borne by the Buyer.
5.2
If the Goods cannot be shipped from the Seller’s premises for any reason attributable to the Buyer, the risk shall pass to the Buyer on the scheduled date of shipment of the Goods from DW Coatings’ premises, as notified to the Buyer.
6. Retention of Title
The Goods remain the property of the Seller until they have been paid for in full. If, for any reason whatsoever, the Buyer still owes the Seller any late payment interest and/or lump-sum damages, ownership of the Goods will not transfer until such late payment interest and/or lump-sum damages have been paid in full by the Buyer. In the event of non-payment, the Buyer shall, upon the Seller’s first request, immediately return the Goods to the Seller in good condition.
7. Liability
7.1
The Seller shall not be liable for defects in the Goods caused by normal wear and tear, abnormal or unsuitable storage or usage conditions, or any act, omission, or error on the part of the Buyer or any third party.
7.2
In any event, the Seller’s total liability to the Buyer is limited to the price (excluding VAT) of the Goods that gave rise to the damage, as charged to the Buyer. This limitation of liability applies regardless of whether the act or omission was committed by the Seller or an agent of the Seller, and regardless of the applicable liability regime, including, but not limited to, contractual liability, Aquilian liability, strict liability, product liability, liability for latent defects, and even in the event of gross negligence on the part of the Seller and, furthermore, in the event of gross and intentional negligence on the part of its employees.
7.3
The Seller is not liable for any differences in the color, shape, or weight of the Goods compared to the Seller’s description of them, as provided in its brochures, on the Internet, at trade shows, etc. Furthermore, the Seller is not liable for any variations in the structure or material of the Goods.
8. Force Majeure
The Seller shall not be liable to the Buyer for any loss or damage that the Buyer may suffer and that is a direct or indirect result of the fact that the performance of the Agreement is prevented, hindered, delayed, canceled, or rendered economically unfeasible due to circumstances or events beyond the Seller’s reasonable control, such as, but not limited to, strikes, lockouts, labor disputes, breakdowns of equipment or machinery, flooding, storms, difficulties or increased costs in obtaining labor, materials, or transportation, strikes or delays at a Seller’s supplier, or refusal to deliver by a Seller’s supplier.
9. Termination
9.1
The Seller has the right to terminate the Agreement by registered letter with immediate effect and as a matter of law if the Buyer fails to fulfill one or more of the essential obligations of the Agreement, these general terms and conditions, or if any amounts owed by the Buyer to the Seller in connection with this or previous orders have not been paid in full, without prejudice to any other rights of the Seller, including its right to claim damages.
9.2
If the buyer is declared bankrupt, requests a moratorium on payments, is dissolved, or enters into judicial or extrajudicial settlements with creditors, the Seller has the right to terminate the Agreement with immediate effect or to require full advance payment or other guarantees from the buyer prior to delivery.
10. Final Provisions
10.1
No failure or delay by either party to enforce or comply with the terms or conditions of the Agreement shall constitute a waiver of such terms or conditions.
10.2
The Agreement shall be governed exclusively by and interpreted in accordance with Belgian law. Only the courts of the judicial district in which the Seller’s registered office is located shall have jurisdiction to hear any dispute arising out of or in connection with the Agreement. The parties agree that the Vienna Convention on Contracts for the International Sale of Goods of April 11, 1980, shall not apply to their current and future relationships.
10.3
The information and personal data provided by the Buyer to the Seller will be included in a database that will be used by the Seller—or by third parties engaged by the Seller for these purposes—for the Seller’s administrative purposes, as well as to inform the Buyer about the Seller’s current or future services, goods, promotions, and the like.
10.4
The drawing and/or acceptance of bills of exchange or other negotiable instruments does not constitute a novation of debt and does not constitute a deviation from these general terms and conditions. Any costs associated with unpaid bills of exchange, as well as other collection costs of any kind, will be charged to the buyer separately.