of Added Value Industrial Services bv
1. GENERAL – FORMATION OF THE CONTRACT
1.1. These conditions, including the special conditions mentioned or referred to on our offers, order confirmations, delivery notes, work orders, are, except for our express and written deviation, applicable to all our agreements with our clients, and this from the moment they have been brought to their attention at least once, at any time and in any form.
1.2. They are considered as formally and explicitly accepted by our customers, even if these conditions contradict their own general or special conditions of purchase or sale.
1.3. The fact that a specific agreement deviates from one of the provisions of these general conditions does not exclude the application of the remaining provisions.
2. Quotes / Offers
All our proposals, catalogs, brochures, price lists, information and technical data sheets of any kind issued to our customers do not constitute an offer and are not binding on us in any way.
The offer is only valid for a period of 30 calendar days, unless another period has been expressly specified. We can only be bound by our quotation if the order from our customer reaches us during the aforementioned period. The prices given in the quotation are only valid subject to an order for all the goods provided for in the quotation and subject to the minimum quantities indicated therein being purchased.
Unless otherwise stipulated, all work relating to the installation, connection and commissioning as well as all work and materials relating to the protection and packaging are not included in the offer.
2.2. Preliminary study and annexes to the offer
All annexes, plans and (assembly) schedules of materials, which are attached to each quote or offer, are for information purposes only and without obligation. They are included only for the purpose of possibly contributing to the solution of one or other difficulty and do not bind us in any way.
We may make changes to the material up to the time of approval of the order and even afterwards, but only on the sole condition that it has at least equally adequate characteristics or is in conformity with the customer’s needs as formulated in the order form.
Our customer bears full responsibility for having any study carried out in connection with the placement, fitting and assembly. He also ensures that the rules in force with respect to noise, hygiene and safety and, in general, all environmental standards are respected, even if a special material was delivered at his request (whether or not accompanied by additional documents).
We can only guarantee the conformity of the material to special or additional requirements if these have been stipulated prior to the acceptance of the order or in a letter indicating our express acceptance thereof.
However, on express request, we may agree to carry out ourselves, or have carried out, certain studies relating to placement, suitability or assembly. These studies shall then be the subject of a separate invoice, in which case our liability shall moreover be limited to our gross negligence in failing to comply with the rules of good craftsmanship.
Also forms the subject of a special invoice: any study accepted and carried out by us at the request of the customer in connection with the manufacture of a special material.
3. Industrial Property
3.1. All designs, studies, sketches, plans, specifications, photographs, engravings, printed matter, samples, test and pilot products, etc… made available by our agents, representatives or personnel, even in case of special remuneration, are and remain our property. They must be returned to us on our simple request if their provision has not been followed by an order for corresponding equipment or materials.
We also reserve the full intellectual property rights to the aforementioned documents, as well as all industrial property rights, business rights and subsequent rights that might arise from them. We undertake to keep these documents confidential and not to transfer, distribute, assign, reproduce or perform them in any way without the prior consent of the customer.
3.2. The customer is prohibited from selling other products under our brand and/or trade name. Similarly, such brand -or trade name of the seller may not be used in any way for objects etc… which are manufactured by the buyer himself without the permission of the seller.
3.3. If the instruments mentioned above in article 3.1. are made available to us by the client for use in the execution of one of our commitments with the client, the client shall indemnify us against all claims of third parties against us by virtue of any industrial or intellectual property right. In the context of this article, the client assures us that he is the original designer or at least the holder, licensee or authorised user of the industrial or intellectual property rights to the instruments in question and that he has not ceded any of these rights to any third party. Any claim made against us by a third party in this connection shall automatically entitle us to suspend all our obligations towards the customer or to consider the agreement to be terminated with compensation for damages payable by the customer as in the case of cancellation and increased by any other damage suffered by us.
4. ORDERS AND ACCEPTANCES
4.1. By signing for approval the copy of the offer or the quotation, or any other statement emanating from the customer accepting without reservation our offer or our quotation, the customer commits himself definitively.
4.2. Where payment of an advance is stipulated in the offer, we are only bound to execute the order after payment has been made.
4.3. Any modification of an order or our initial offer relieves us of the obligation to comply with the delivery period originally promised by us.
4.4. Any advance payment received in connection with the order is definitively acquired by us, unless the customer provides proof that we have manifestly failed to meet one of our main obligations within three months of being notified of the default.
4.5. In the event of cancellation of an order for materials, payment is due for that part of the order that has been executed or that part of the order that is in progress at the time of effective receipt of the cancellation. The order in progress is understood to mean not only the part of the order for which actual execution has commenced, but also the part that is in preparation, as well as the specific stock, and the orders that could no longer be cancelled with any suppliers and subcontractors.
Moreover, the foregoing does not affect our right to prove any additional economic, commercial and other losses that we may incur as a result of commitments already entered into with our suppliers in connection with the customer’s order.
5.1. The prices quoted are indicative, except in the case of express mention of a period during which an option is taken, as well as of a fixed price or a determinable price independent of both parties.
5.2. Any orders placed outside the aforementioned option period will be based on the price in force at the time of the express confirmation of the order, which is dependent on various elements such as purchase prices, exchange rate fluctuations, the cost of wages, salaries, social security and/or public charges, taxes, insurance premiums and other costs. This newly established price will be calculated by us on the basis of the following formula but always insofar as this gives rise to a price adjustment in more: p=P((0.4 i/I) +(0.3 i/I) +(0.3 l/L)) with – p = the revised price; – as basic parameters, of the month preceding that of our quotation: P = the quotation price used by us; I = the domestic market sales index (total industry (excluding construction)); L = the national reference wage factory and workshop; S = social charges and insurance factory and workshop; – as evolved parameters, of the month preceding this of our delivery or execution i, l and s. (source: FPS Economy, SMEs, Self-employed and Energy http://mineco.fgov.be) This price adjustment may also be applied by us if the production or delivery of the materials or works ordered by the customer cannot be carried out within the initially specified delivery or execution period without our consent.
5.3. The prices indicated in the acceptance of the order are prices VAT exclusive, for the devices without more, exclusive of packaging and made available in our workshops. The prices quoted by us do not therefore include the cost of packaging, loading and unloading, transport or insurance, etc…
5.4. If the quantities indicated in our quotation prices are not ordered by the customer, we reserve the right to increase our unit prices.
5.5. Any working hours will be charged by us at our unit prices per working hour per man according to the tariff in force at the time.
5.6. Our prices are always established on the basis of data communicated to us by our customers. They also do not take into account special circumstances that require a substantial adjustment of our production process.
6. PROVISIONING – TRANSFER – DELIVERY TERMS
6.1. Regardless of the destination of the goods and the terms of payment, their provision shall be deemed to have taken place in our workshops or warehouses.
6.2. The customer shall bear the full risk for the delivered goods as from the simple notification by us of the aforementioned making available, as by way of example by delivery note. Shipment of the goods shall be at the customer’s risk, subject to the latter’s right of recourse against any persons he may have charged with packaging, loading, unloading or transport, and this regardless of any other indications on the delivery note, the dispatch note or any other similar document, such as, for example: “delivered free at the station, on the quay, to the purchaser or against full or partial reimbursement of the transport costs”. Indeed, such statements are presumed to relate only to payment and not to the transfer of risk, nor to the responsibility of the customer.
We undertake to deliver the goods in the manner and as stated in the offer as accepted.
6.3. In the event of a delay in delivery of more than thirty days with respect to the delivery date to which we have committed ourselves, we shall be liable by law and without notice of default to pay the customer compensation in the amount of 2.50 euros, with a maximum of 20% of the price excluding VAT of the goods of which our late delivery has been proven.
6.4. We are, however, discharged from any liability in connection with the delivery terms by operation of law if:
the payment conditions have not been respected by the customer,
the technical or commercial information necessary to carry out the order has not been transmitted to us in due time by the customer,
force majeure such as, for example: lockout, strike, epidemic, war, economic embargoes, sabotage, fire, adverse weather conditions, water damage, machinery breakdown, work stoppage, failure of important parts during manufacturing, interruptions or delays in the transport or receipt of raw materials, and this both at our premises and at those of our suppliers and, in general, any external cause which we can reasonably demonstrate has affected or is affecting our production process or our delivery deadlines.
6.5. If our delivery deadlines are expressed in days, weeks or months, these deadlines shall always be suspended during periods of leave and statutory holidays unless otherwise stated.
6.6. Delivered goods or parts thereof shall not be taken back except as provided for in articles 7.2, 8.4 and 10 below.
7. RETENTION OF TITLE
7.1. Ownership of the goods delivered by us shall transfer to the customer only after full payment of the price of the equipment or goods, the associated costs and taxes and, where appropriate, in the event of late payment, the payment of interest on arrears, the compensation clause and the recovery costs as provided for below.
7.2. As long as the above-mentioned price, possibly increased by the appurtenances as determined above, has not been paid to us, we are entitled, in the event of an obvious default on the part of the client, to reclaim the goods delivered by us and to establish the breach of contract at the expense of the client by means of a registered letter or service if the client has not complied with all the provisions of the contract within eight days of our notice of default.
7.3. Until the price of the goods has been paid in full, the client undertakes not to make any changes to them, not to incorporate or transform them, nor to remove their identification plates. The customer is prohibited from selling the goods as long as he has not paid the full price, possibly increased by the appurtenances as stipulated above.
7.4. The customer is also prohibited from pledging the goods and/or merchandise for which the transfer of ownership as stipulated above has not yet taken place, or using them as collateral for a claim by a third party.
7.5. This retention of title shall continue to apply in the event of bankruptcy, dissolution of the customer’s business or if the customer has obtained a court order. The goods delivered by us as above do not belong to the estate of our customer if they have not been paid to us in full, including all the accessories of our claim as stipulated in article 7.1. and this even without our having to have put our customer in default in advance. These goods must therefore be returned to us at our first request.
8. RECEIPT – COMPLAINTS – RETURNS
8.1. The conformity of the delivery shall be examined by the customer at the time of receipt of the goods. Errors in the delivery, including those relating to quantities, colors, type and serial numbers, etc., shall be noted on the delivery note, the invoice or the transport documents. Any complaint regarding the non-conformity of the delivery or any visible defects must be confirmed to us in writing within ten calendar days of delivery. We are not obliged to take into account complaints in this respect that are not confirmed to us within the aforementioned period.
8.2. Transformed and incorporated goods are deemed to have been accepted by the customer.
8.3. The packaging and contents of any non-conforming goods delivered shall be retained by the customer.
8.4. Return shipments of delivered goods will only be accepted if we have previously authorized them in writing and if they have been made in accordance with our instructions. These goods must reach us carriage paid and must be in a new and perfect condition. In the event that the goods or materials returned to us prove to be damaged, they shall be repaired by us or on our instructions at the customer’s expense. Only after payment of the repair costs by the customer will we proceed to exchange with undamaged goods or materials.
9. Invoices and protests
9.1. We shall at all times be entitled to draw up invoices for deliveries or performances already carried out by us, even if we have only partially delivered or partially performed.
9.2. Any protest relating to the drawing up, the form or the content of our invoices, including the present general and special terms and conditions, is only valid and can therefore only be declared admissible if it is formulated within 10 calendar days following the date of receipt of the invoice. In any case, in order to be valid, the protest must be motivated and accurately list the reasons for the protest. Also, in case of protest, the customer must express the extent of this protest in monetary value. The protest mentioned above shall only be made by registered letter addressed to our registered office.
9.3. In case of protest, the invoice amounts to which the protest does not apply shall remain payable on the due date of the invoice and shall, if applicable, in case of late payment be increased by the interests, damages and collection costs as stipulated in article 10 below.
9.4. In the absence of a valid protest as stipulated above, the customer acknowledges the correctness of the deliveries and performances invoiced by us, even if there is no prior agreement or offer on our part.
9.5. In the absence of any fixed date of receipt in this regard, our invoices shall be deemed to have been received by the customer on the third working day following the invoice date for invoicing addresses in Belgium, the fifth working day following the invoice date for invoicing addresses in the other countries of the European Union and the tenth working day following the invoice date for invoicing addresses outside Belgium. Evidence to the contrary must be provided by the customer.
10.1. Unless otherwise stated on our invoices, all our deliveries and services must be paid within 15 calendar days of the invoice date, without the right for the customer to apply a discount or discount rate. Payments shall be made in cash to our suppliers, cash on delivery, at our registered office or to our bank account.
10.2. In the absence of full payment of an invoice within the above-mentioned term, we shall be entitled, as from the day following the term as defined above, by operation of law and without notice of default, to the payment of default interest as provided for in article 5 of the Law of 02/08/2002, although the interest rate thus obtained may not be less than 12 percent on an annual basis.
10.3. By failing to pay within the aforementioned period, the customer also acknowledges that he has committed a contractual error and has thereby caused us loss. This damage, including the recovery costs as referred to in article 6 of the Law of 02/08/2002, must be compensated by the customer and is estimated as follows:
– to cover the extrajudicial collection costs and the administrative work involved, a compensation is estimated at 15% of the outstanding balance with a minimum of 125 Euro, plus a fixed amount of 13 Euro per reminder as well as the possible registration fee; if we also engage third parties for the amicable collection of the amounts claimed by us, these costs will also be charged to the customer;
– if, in addition, we should proceed to judicial collection, the customer shall, insofar as the Law of 02/08/2002 on commercial transactions with the customer applies, also have to reimburse us for all costs incurred by us in the course of judicial collection, although this reimbursement may not be less by comparison than the amount obtained after application of the rate of sums that are recoverable expenses by virtue of the performance of certain material acts, as determined by the King in execution of article 1022 of the Judicial Code.
10.4. Acceptance of a bill of exchange shall not in any way result in a renewal or deviation from the present terms of payment.
10.5. If the customer has not paid an invoice by its due date, all other invoices, even those not yet due, shall become immediately payable.
10.6. In the event of late payment of our invoice(s) by the customer, we reserve the right to declare any granted discounts expired, even retroactively, with respect to the discounts granted to the customer up to one year prior to the last granted discount.
10.7. Under no circumstances may an incomplete or partially disputed delivery be used as a pretext to postpone payment of the portion that is not disputed, which also applies if the client fails to collect the material made available to him. Delays in our delivery, which are not our fault, do not entitle the client to withhold any payment, nor do they entitle the client to change the original order. Unless expressly permitted by us, no deduction by way of guarantee is permitted.
10.8. If payment facilities are granted by us, either payment in instalments or acceptance of bills of exchange, it is hereby expressly agreed that the first non-payment shall automatically and without notice of default render all bills of exchange or instalments due immediately payable. Any contracts concluded by us may in this case also be regarded as broken by the customer.
10.9. Payments shall always be offset first against interest due under these terms and conditions, then against damages and collection costs, and only then against the outstanding (balance of the) invoice(s), with the oldest outstanding amounts also being offset first, and this irrespective of any remark(s) or statement(s) by the customer on the occasion of his payment(s).
10.10. We are at all times entitled to assign all or part of our claims against the customer to third parties.
10.11. We agree with our customer that if, notwithstanding the above provisions, the materials or goods delivered by us and not yet paid for are nevertheless sold on, in whole or in part, by our customer to his customer, a transfer of claim will be effected as follows: after service by registered letter of the assignment of claim by us on both our client and his client, the claim of our client against his client is assigned to us in whole or in proportion to the resold part, in the amount of the debt in principal, exclusive of interest on arrears, compensation clause and collection costs, of our client against us. Our client is obliged to inform us on first request of all elements of his debt towards his client if we intend to apply this article.
11. The guarantee
11.1. Within the limits of the guarantee granted to us by the manufacturer or our supplier, we guarantee the material or goods sold and delivered by us against any manufacturing defect or functional defect, whether they arise from a defect in the conception, raw materials, manufacture or execution and this under the following conditions:
11.2. The guarantee applies only to the goods or materials delivered by us or the performances carried out by us. It does not extend to the materials in which the goods or materials delivered by us are incorporated and in particular, to the properties/characteristics of these materials and goods.
11.3. In the event that the devices have been incorporated by the customer himself or by a third party in any material, they alone shall be responsible for the adaptation, choice and/or (assessment of) the fact that the materials or goods delivered by us are or are not adequate. The guarantee can in no way be granted in the event of faulty assembly, adjustment, conception and/or functioning of the whole or of the parts of this combination created as such.
11.4. On repairs carried out by us as well as on the new construction of assembled groups, a warranty period of 6 months applies after the first use by the customer, provided this use starts within a reasonable period after our delivery. New construction of assembled groups means the machines designed and constructed by us, whether or not consisting of one or more original components and parts supplied, assembled and/or fitted by us or by third parties. The guarantee period for the constituent components and parts will never be longer than the guarantee period stated above unless the original supplier/manufacturer intervenes in the costs of replacement of the components, assembly, disassembly as well as mounting.
11.5. Are explicitly excluded from the guarantee, the defects and/or the damage which are the immediate consequence of, or which have come to light on the occasion of one of the following facts or acts:
Any negligence, error of connection or manipulation, any use of the equipment other than in accordance with our technical specifications or those of the manufacturer, as described in the instructions for use given to the customer, or, in general, its incorrect or abusive use.
Any intervention, arrangement, repair or similar practice in connection with the maintenance works carried out by any person not authorized by us or the manufacturer.
Any fire, water damage, accidents or defects in air conditioning, storms, consequences of the storms or meteorological disasters.
Any act or fault causing damage caused by anyone, including the customer himself or his agents.
Damage caused by transport, even if the delivery is made carriage paid and by us or on our behalf.
11.6. In any case, any defect has to be notified to us by registered letter within eight days from the moment of its discovery and at the latest within six months after the delivery, under penalty of lapse of any claim.
11.7. The guarantee may only be claimed by the customer after full payment of the goods for which the guarantee is invoked.
11.8. If only a part of an appliance or delivered good is replaced, this in no way extends the warranty on the entire appliance or good.
11.9. Any modification or installation of even new but not original elements invalidates the guarantee.
All packaging and protection of equipment for transport and storage shall be invoiced in addition to the goods. In the absence of special indication, all packaging is prepared by us according to what we deem necessary in function of the nature of the goods and of transport and storage. Packaging will not be taken back.
13. Transport and storage costs
13.1. All administrative and fiscal operations relating to transport, insurance, customs, etc… are at the expense and risk of the customer, who is responsible for verifying the arrival of shipments and, if necessary, for recovering them from the carrier or the transport commission agent or intermediary, even if the shipment is delivered carriage paid.
13.2. If we take care of the transport of the materials delivered by us, the customer will always ensure that unloading can take place in dry conditions and from a hard road that is easy to drive on. Damage caused to paved surfaces during unloading will never be at our expense.
13.3. If collection of the materials was stipulated in the agreement or the offer and this collection has not taken place within 15 calendar days following our notification to the customer that the goods can be collected by him in our factory or our warehouses, we are entitled to charge storage costs according to the rate applicable at the time.
14. ASSIGNMENT AND SUBSTITUTION
We are entitled to be replaced in the performance of our obligations by any other third party we deem suitable to perform the contract.
15. LIABILITY AND EXONERATION CLAUSES
15.1. In accordance with its obligations as a client arising from the Welfare Act of 4 August 1996 and its implementing decrees of 27 March 1998, our client must always inform and consult with us properly, fully and prior to any work to be carried out by us in its factories, warehouses or mobile workplaces, with regard to the safety, health and environmental risks associated with the work we carry out. In this context, toolbox meetings and HSE meetings with our personnel and persons in charge are organized on the customer’s initiative, in which appropriate measures are decided upon and the implementing agents for these measures are designated. The customer is responsible for preparing and making available to our personnel and persons in charge a preliminary risk inventory and evaluation as well as an emergency and evacuation plan. In this context, the client shall also provide us, prior to any work to be carried out by us, with a detailed plan of the places where we are to carry out the work, with a clear indication of the utility pipes for electricity, water, gases and liquids present, the presence of any storage tanks, crates and other storage units as well as their contents, with an indication of the risk of fire or explosion. The customer shall ensure that at the places or in the immediate vicinity of the places where work is carried out by us or through which materials or equipment is supplied by us, the necessary collective protective equipment is installed and a first aid kit and fire extinguishers are readily available and accessible. Likewise, at our simple request and in accordance with our instructions, the client will proceed to shut down machines, close off pipes or tanks or remove materials and equipment prior to, during or during a well-defined period after the work to be carried out by us. If the customer fails to fulfil one or more of the obligations incumbent on him above or to perform his duty as coordinator of the work carried out by us with due care on a permanent or occasional basis, we shall be relieved of all responsibility and liability in respect of any damage arising on the occasion of or due to our work, even if it is proved that any damage is in direct causal connection with any act or manipulation of material or equipment performed by us or by our employees.
15.2. If we are held liable for any damage suffered by the customer as a result of errors made by us or our subordinates during the performance of our obligations, our liability shall always be limited to the direct damage that is attributable to our serious fault or the fraud of one of our subordinates or the faulty (or non-)performance of our main obligation, subject to any situations of force majeure and subject to what is stipulated in Article 15.1.
15.3. Furthermore, our liability can never exceed the corresponding amount necessary to provide for the replacement of the materials or goods delivered by us or the goods damaged by us.
15.3. We can never be held liable for indirect damage and no objective product liability can be imputed to us.
15.4. Our liability is excluded in any case where the damage is caused by the concurrence of a defect in the product and the fault of the victim or of the person for whom the victim is responsible, such as, for example, the knowing use of a device that is known to be defective.
15.5. Any claim must be notified to us in writing within 8 calendar days of its occurrence and any damage estimate must be notified to us immediately.
15.6. To the extent that we are sued by a third party for compensation for damage that is directly or indirectly related to the delivery of goods or materials or the performance of work commissioned by or for the account of the customer, the customer will be obliged to indemnify us for any compensation that we may have to pay to that third party as a result. On the other hand, if we are held liable by the client for any damages for which he is held liable by any third party, our obligation to hold us harmless will not exceed the compensation for which we could be held liable directly towards the client for the amounts and within the limits stipulated in these conditions.
We reserve the right, should the client fail to make payment within the stipulated period for goods ordered but not yet delivered after having received a registered notice of default, at our discretion, either to demand the execution of the agreement, or to consider the agreement terminated by operation of law. In the latter case the customer shall owe us damages for breach of contract amounting to at least 30% of the contract price without prejudice to our right to claim higher damages if we can prove by all means permitted by law that the aforementioned minimum is not sufficient to cover all our losses.
17. MISCELLANEOUS PROVISIONS
17.1. In the event that our personnel are prevented from carrying out their assignments in the normal way by the actions of the customer, a compensation will apply based on the lost time or waiting periods at 35.00 Euro per man/hour.
17.2. In the event of the customer’s death or dissolution, we will always have the choice of dissolving the contract or requiring the performance of the contract by his legal successor(s). In case of failure or judicial settlement, which takes place before delivery or full execution of our performances, the contract will be dissolved or not, at our discretion, and the customer will lose the right to claim damages from us for any reason whatsoever.
17.3. Our customer warrants that the following facilities shall be made available to us free of charge and supplied to us free of charge at or in the immediate vicinity of the work sites where we carry out the work: sanitary facilities for our personnel, a canteen, a changing room, parking facilities for our vehicles, electricity, water, vertical and horizontal transport, as well as a dry, dust-free and closed stacking area.
17.4. If our Customer makes access to its premises by our personnel subject to a prior specific safety training or a similar training, the time taken up by such activity shall be charged as additional work at our unit prices per hour of work per man and this according to the rate applicable at the time. Our personnel shall never be subjected to any prior vetting that violates their privacy or that is not legally permissible. Identification badges for our personnel, issued by us or by the professional association of which we are a member, will be accepted as sufficient proof of guarantee with regard to the competence of our personnel.
The parties agree, prior to any legal action, to use all means to reach an amicable solution. In the absence of such an amicable solution, the courts of the judicial district in which our registered office is situated have exclusive jurisdiction, even in the event of a plurality of defendants, counterclaims, interventions and indemnifications, and even in summary proceedings. All agreements concluded by us with the customer are exclusively subject to Belgian law.