General terms and conditions of sale

 

Preliminary provision.

§1 These general terms and conditions can also be found online in Dutch at www.provecta.be.

§2 An additional printed copy of these general terms and conditions shall be sent upon first request.

 

Article 1. Definitions.

§1 PROVECTA: PROVECTA, BV under Belgian law, registered in the Register of Legal Persons of Antwerp, section Mechelen, with registered office at Klein Boom 5, 2580 Putte and with company number 0777.744.218.

§2 Customer: the natural or legal person, company or not, who requests a quotation from, places an order with, enters into an agreement with, or is supplied with goods and/or services by PROVECTA.

 

Article 2. Scope.

§1 These general terms and conditions apply to all offers made by, all agreements entered into with, all deliveries of goods and all provision of services by, PROVECTA and form an integral part of the contractual relationship between PROVECTA and the customer.=

§2 By the mere fact of placing an order with, accepting an offer made by, entering into an agreement with and/or accepting the delivery of goods or the provision of services by PROVECTA, the customer acknowledges that it is aware of and has accepted these general terms and conditions.

§3 The customer acknowledges that the application of its own general terms and conditions of purchase is expressly excluded.

 

Article 3. Conclusion of the Agreement.

§1 Any offer made by PROVECTA is non-binding and subject to the availability of stock at PROVECTA or its supplier(s) and, unless otherwise specified, is valid for a period of fourteen (14) calendar days from the date the offer is made. The agreement between PROVECTA and the customer is concluded at the moment PROVECTA confirms the customer's order in writing.

§2 PROVECTA may only be bound by persons who are authorised to represent it and who have acted within the limits of their powers of representation.

 

Article 4. Prices.

§1 Unless otherwise specified by PROVECTA, the prices indicated by PROVECTA are expressed in Euros and do not include taxes, duties, levies, excise duties and customs duties (including, without limitation, import and export duties and VAT). Taxes, duties, levies, excise duties and customs duties shall be borne by the customer and may, and indeed will, be passed on to the customer by PROVECTA to the extent that the latter were to pay them (in advance).

§2 Unless otherwise specified by PROVECTA, the prices quoted by PROVECTA do not include the cost of transport. Unless otherwise contractually agreed, the transport costs may, and indeed will, be charged to the customer.

§3 If necessary, PROVECTA will deliver the goods packaged. Unless otherwise agreed in the agreement, PROVECTA will pass on the cost of packaging to the customer at cost price.

§4 If, after the agreement has been entered into, taxes, duties, levies, excise duties and customs duties at home or abroad in relation to the services, goods, packaging or transport are introduced or increased, or if exchange rate changes increase the cost price for PROVECTA, PROVECTA is entitled to increase the price charged in proportion to this increase.

§5 If the customer, after notice has been given, fails to collect the goods in PROVECTA's warehouse or take delivery of them, PROVECTA may charge a fee of EUR 5 per m³ and per calendar day for the storage of the goods, with a minimum amount of EUR 100.

 

Article 5. Delivery/execution.

§1 Delivery times/execution times are always given as an indication and are approximate, unless it is explicitly agreed in writing that the delivery time/execution time is binding by means of the mention "binding delivery time".

§2 PROVECTA shall make every effort to meet the approximate delivery time/execution time indicated by way of information. In case of delay in delivery/execution, the customer may not, by virtue of this single fact, demand the termination of the agreement and may not, under any circumstances, demand compensation of any kind from PROVECTA.

§3 If an imperative deadline for delivery/execution has been agreed and PROVECTA has not delivered the goods by the deadline for delivery, the customer may demand, by registered letter, performance of the agreement within eight (8) weeks, from the date of dispatch of the letter. If PROVECTA has still not delivered goods/rendered services by the end of this period, the customer may - except in cases of force majeure on the part of PROVECTA, brought to the attention of the customer - terminate the agreement without judicial intervention and with immediate effect. In this case, the customer shall be entitled to a refund of the amounts paid in advance on the undelivered goods/services.

§4 The delivery period/period of execution only begins once PROVECTA has received all that must be provided by the customer (e.g. necessary data).

§5 Unless otherwise contractually agreed, the customer must collect the goods from PROVECTA's warehouse at the agreed time and in any case within seven (7) calendar days of PROVECTA's invitation to do so. If the goods must be transported to a destination specified by the customer, this must be agreed upon separately.

§6 If PROVECTA and the customer have agreed that the customer will purchase a certain volume of goods over a certain period of time and at the end of that period, the customer has not yet completed the purchase, the customer must immediately purchase the remaining volume of goods.

§7 PROVECTA reserves the right to make partial deliveries. The partial delivery of goods cannot justify the refusal to pay for the goods delivered.

 

Article 6. Risk and liability.

§1 The risk in relation to the goods is transferred to the customer at the moment when the goods are ready for collection or dispatch in the PROVECTA warehouses and, in any case, when they leave the PROVECTA warehouses. The goods are stored at the customer's expense and risk. If the customer does not take delivery of the goods, it is nevertheless liable for the purchase price (without prejudice to PROVECTA's right to opt for dissolution of the agreement).

§2 Unless otherwise contractually agreed, the transportation of the goods to the destination specified by the customer is at the customer's expense and risk. The customer may request PROVECTA in writing to take out an insurance policy for the transport, the premium for which, provided it is advanced or paid by PROVECTA, may, and indeed will, be charged to the customer.

§3 PROVECTA shall only be liable for damage caused by the non-performance, incomplete performance, late performance or improper performance of its obligations in the case of wilful misconduct or gross negligence on its part or on the part of its agents. PROVECTA's liability is - except in the case of wilful misconduct - always limited to compensating the customer for foreseeable, direct and personal damage, to the exclusion of all indirect, immaterial and consequential damage which includes, but is not limited to, loss of income or profit, loss of customers, contracts or business opportunities, damage to reputation and additional costs. In any case - except in the case of wilful misconduct - PROVECTA may only be liable for compensation up to the maximum amount that PROVECTA has invoiced, or should contractually have invoiced to the customer in the financial year in question. The customer explicitly and unconditionally waives any further claim for compensation of any kind against PROVECTA.

§4 The goods/services will be inspected by the customer immediately upon delivery at the specified destination/handover for conformity and any visible defects. Complaints about weight, quantities and measurements must be made immediately on receipt of the goods. If the goods/services are otherwise found not to be in conformity or there are visible defects, the customer must inform PROVECTA by registered letter, within 48 hours of delivery/handover and in any case before the use/application of the goods, with the content as detailed below, failing which the customer will no longer be able to claim for repairs, replacement, price reduction, termination, compensation or any other sanction. This letter must contain a detailed and exhaustive summary of the non-conformity or defects found; the necessary supporting documents must be enclosed. The conformity and the absence of visible defects of the goods shall be presumed from the lack of a detailed list or the submission of supporting documents within the above-mentioned period or from the use of the goods or part of them or when the goods have been paid for.

§5 The goods are sold to the customer at its own risk. The customer acknowledges to have made its own enquiries and to be fully informed about the laws and regulations applicable to the intended use of the goods and the technical and functional specifications of the goods, including, without limitation, the (chemical and physical) properties (also as a result of exposure to the elements), the quality, use, operation, method of installation or processing, treatment, maintenance and resistance to time and weathering, and confirms that it has sought out any (detailed) information and regulations and has carefully examined them. The customer acknowledges that PROVECTA cannot be deemed to know the purposes for which the customer will use the goods and that the customer itself has examined and assessed the regulatory framework and the suitability of (the use of) the goods for its intended purposes.

§6 PROVECTA cannot be held responsible for any damage caused by the incorrect installation or incorrect storage or use of the goods, e.g. in violation of the applicable laws and regulations, user instructions, manuals and/or the duty of care. PROVECTA cannot be held responsible for any damage caused after the goods have been modified by the customer or a third party, including, but not limited to, sawing, grinding, polishing, processing or treatment with any product for any purpose.

§7 PROVECTA shall not be liable for hidden defects that may become apparent after a period of six (6) months from the time of delivery of the goods in question. If hidden defects are discovered, the customer must inform PROVECTA by registered letter, within 48 hours of their discovery, with the content as detailed below, failing which the customer will no longer be able to claim repair, replacement, price reduction, dissolution, compensation or any other sanction. This letter must contain a detailed and exhaustive list of the defects found. In the case of damage caused by hidden defects for which PROVECTA may be held liable, PROVECTA will only be liable for compensation up to the amount of the invoice issued by PROVECTA to the customer for the defective goods. The customer expressly and unconditionally agrees to waive any other claim for compensation, of any kind, against PROVECTA.

§8 If the customer receives any complaints regarding the goods supplied by PROVECTA from its own buyer or any other intermediary in the chain, it must inform PROVECTA in writing within five (5) calendar days. ailing this, the customer will no longer have any claim against PROVECTA for the goods in question and PROVECTA - without prejudice to the limitations of liability set out in these general terms and conditions of sale - will in any case no longer be required to carry out any repairs, replacements, price reductions, compensation or any other action whatsoever.

§9 In case the goods delivered/services rendered are subject to a (visible or hidden) defect and PROVECTA is liable for this, taking into account the provisions of this article, PROVECTA will always have the right to remedy this defect by providing a repair or replacement. The customer explicitly and unconditionally agrees to waive any further claim, including for compensation of any kind, against PROVECTA.

 

Article 7. Invoicing and payment.

§1 The customer agrees that PROVECTA may send its invoices electronically, via a system of its choice, for example, by e-mail or by making them available on a platform. To this end, the customer shall provide an e-mail address upon PROVECTA's first request.

§2 If the agreement between PROVECTA and the customer involves goods that are not part of PROVECTA's standard range and/or which must be processed before delivery to the customer (custom-made goods), PROVECTA may at any time require payment in advance or adequate security before ordering from the manufacturer, processing and/or delivering to the customer.

§3 Unless otherwise agreed in writing or stated on the PROVECTA invoices, PROVECTA invoices are payable within thirty (30) days of the invoice date.

§4 If an invoice is incorrect, it must be protested within ten (10) calendar days of the invoice date by registered letter. Invoices that have not been protested within the aforementioned period and in the aforementioned manner shall be deemed to have been accepted without further ado.

§5 The place of payment for the customer's debts to PROVECTA is the registered office of PROVECTA. The customer's debts to PROVECTA are therefore portable.

§6 The customer may not refuse to pay for the goods delivered or services rendered on the grounds that the total of the goods or services ordered have not (yet) been delivered or rendered.

§7 PROVECTA is entitled to set off payments against any due interest on arrears, costs and conventional fixed damages before setting them off against the outstanding principal sum.

§8 PROVECTA is always entitled, even in the case of concurrent payments, to set off any sums it may owe the customer on any grounds whatsoever against the sums owed by the customer to PROVECTA, regardless of whether or not these sums are already due.

 

Article 8. Non-performance.

§1 In the event that the customer fails to meet its obligations to PROVECTA, PROVECTA may choose to either demand performance of the agreement or terminate the agreement in its entirety or in respect of the portion still to be performed.

§2 In the absence of payment within the due date of one or more invoices, PROVECTA will be entitled, automatically and without notice, to payment of interest on arrears at a conventional rate of 12% per year or, if higher, at the interest rate provided for in Article 5 of the Belgian Act of 2 August 2002 on the fight against late payment in commercial transactions, from the date on which each invoice becomes due for payment until the date of payment in full, and the right to payment of fixed compensation of 10% of the amount not paid in time, with a minimum of € 50,- without prejudice to PROVECTA's right to reimbursement of collection costs (including bailiff's costs, costs of appeals and legal fees) if extrajudicial or judicial collection proceedings must be conducted.

§3 Any discounts allowed shall automatically lapse in the absence of payment on the due date of one or more invoices.

§4 In the absence of payment on the due date of one or more invoices, all outstanding but not yet expired invoices issued by PROVECTA to the customer shall become due legally and without notice.

§5 If the customer is allowed to pay off its debt to PROVECTA in several instalments, the interest on arrears and the liquidated damages referred to in § 2 of this article will always be due and, if the customer fails to pay off one instalment on time, it will lose the benefit of the staggered payment and the entire debt, increased by the interest on arrears at the conventional interest rate and the conventional, liquidated damages, will be automatically due and payable without notice.

§6 Whenever doubts about the customer's solvency arise, such as in the event of non-payment or late payment of one or more invoices, a request for an instalment plan by the customer, a seizure in the customer's name, notifications of protective measures or enforcement actions in the customer's name in the Central Register of Notices of Seizure or a similar register, failure by the customer to file its annual accounts in due time, request for a judicial reorganisation or similar procedure by the customer, merger or demerger of the customer, transformation of the customer or bankruptcy of the customer, PROVECTA has the right to demand an advance payment or even full payment in advance for the goods/services yet to be delivered/rendered, or to demand the provision of (additional) securities before proceeding with the execution.

§7 As long as the customer is in default of payment of one or more amounts owed to PROVECTA, for whatever reason, PROVECTA has the right, ipso jure and without notice of default, to suspend any deliveries/services still to be carried out (which may even be connected to the performance of an entirely different agreement between PROVECTA and the customer) until full payment has been received and/or not to hand over any of the customer's goods that it may have in its custody (which may be connected to an entirely different agreement between PROVECTA and the customer).

§8 If, one month after the customer has been reminded, and in spite of what has been contractually agreed, the goods have still not been collected from the PROVECTA warehouses or taken delivery of, PROVECTA is entitled to transport the goods, or have them transported, at the customer's expense, to the waste disposal site or sell them to a third party and charge the proceeds to the customer against the amount owed by the customer to PROVECTA. In such cases, the customer remains liable for the invoicing of the goods, the storage fee and the associated costs.

§9 PROVECTA is entitled to suspend the performance of its obligations ipso jure and without notice of default, or to terminate the agreement with immediate effect, in its entirety or for the part still to be performed, without owing any compensation to the customer, provided that a registered letter is sent to notify the customer of this termination decision (1) in the event of incapacity to issue one or more cheques without cover by, protest of one or more bills of exchange payable by, attachment of, liquidation of, collective settlement of debts of or bankruptcy of the customer, (2) If the customer indicates that it will not comply with its obligations, (3) in case the customer is in serious breach of one or more of its obligations to PROVECTA, including but not limited to its commitment to pay the invoices issued by PROVECTA or the advance payments or prepayments requested on time, its commitment to provide (additional) securities and its commitment to take delivery or collect the goods or its commitment to provide (additional) securities and its commitment to take delivery or collect the goods or (4) in the event that the customer fails to comply with any of its obligations within fifteen (15) calendar days following notice from PROVECTA. In the event of total or partial dissolution, PROVECTA is entitled to liquidated damages amounting to 50% of the amount to which PROVECTA would have been entitled if the agreement had been properly performed, plus the cancellation costs and/or compensation owed by PROVECTA to its supplier(s) (e.g. raw materials or semi-finished products), without prejudice to PROVECTA's right to claim higher compensation if its loss is greater. In the event of termination, the goods already delivered must be returned to PROVECTA at the customer's expense or their value must be compensated.

 

Article 9. Force majeure.

In the event of force majeure, PROVECTA is released from any obligation without the customer being able to claim compensation or reimbursement of amounts already paid. Force majeure includes all circumstances not attributable to any fault on the part of PROVECTA, which make the performance of its obligations impossible, difficult, delayed or more costly, such as, but not limited to, disruption of the energy supply, fire, machinery breakdowns, accidents, strikes or lock-outs, exceptional traffic disruptions, storms, ice, snow, extreme weather, floods, earthquakes, import or export restrictions, embargoes, restrictions of all kinds, increases in taxes, duties, levies, excise duties and customs duties or other government measures, fluctuations in exchange rates, inflation, pandemics, epidemics, riots or war, sabotage, errors by, delays in, production or delivery problems by, price increases by or force majeure affecting suppliers of goods or services. The non-attributable and unavoidable character of the above-mentioned circumstances shall always be deemed to have been fulfilled.

 

Article 10. Retention of title.

§1 PROVECTA retains exclusive ownership of all the goods it delivers until all the amounts due on account of the delivery have been paid in full, including any lump-sum damages, interest on arrears and costs due in case of late payment.

§2 Until then, the customer cannot dispose of the goods in any way whatsoever which has not yet been paid for in full. More specifically, it cannot transfer ownership of them to third parties, encumber them with any security or process or use them in any way.

§3 The customer undertakes to notify PROVECTA immediately of any seizure of goods that are the object of this retention of title.

§4 The risk relating to the goods nevertheless remains with the customer.

 

Article 11. Changes.

PROVECTA is entitled to unilaterally amend these general terms and conditions. The amendments will be immediately applicable to any offer not yet accepted or any new offer originating from PROVECTA, but not for agreements already concluded.

 

Article 12. Miscellaneous.

§1 The customer must always send notifications to PROVECTA at its registered office address, as indicated in the official notices in the Belgian Official Gazette, or at the address PROVECTA has notified the customer of in writing. PROVECTA may send notifications to the customer at the postal address, fax number or e-mail address provided by the customer - as shown in PROVECTA's administrative data - or, depending on the case, at the address of the customer's registered office, operating office, branch office or residence, as shown in the notices published in the Belgian Official Journal, the Crossroads Enterprise Database, the national register or similar official databases abroad. The customer must immediately inform PROVECTA of any change in its contact details.

§2 In the event that a limitation of liability provided for in these general terms and conditions should be invalid in a specific case, this case will be deemed not to have been referred to. In the event that a limitation of liability provided for in these general terms and conditions goes beyond what is legally permissible, this limitation shall automatically be reduced to the maximum limit of liability permitted.

The possible invalidity, nullity or unenforceability, in whole or in part, of one or more clauses of these general terms and conditions of sale shall not affect the validity or enforceability of the remaining clauses or part thereof (insofar as they retain a useful meaning corresponding to the original intention of the parties). PROVECTA and the customer shall negotiate in good faith in order to substitute a valid and enforceable provision for the affected provision that comes as close as possible to the original intention of the parties (with as similar an economic impact as possible).

§3 In the event of contradiction between the various language versions of these general terms and conditions of sale, the Dutch text, which is the only authentic text, shall prevail.

 

Article 13. Applicable law and competent courts.

§1 The legal relationships between PROVECTA and the customer are exclusively governed by Belgian law (with the exception of the Vienna Convention on the sale of goods of 11 April 1980).

§2 Disputes will only be brought before the courts with jurisdiction over the territory in which PROVECTA has its registered office, in accordance with their respective material jurisdiction. The foregoing does not apply in the event that another court is exclusively competent by virtue of the applicable law. PROVECTA also has the sole right to submit the dispute to the court (national or foreign) that would have jurisdiction in the absence of this forum clause.