1. GENERAL
1.1 Unless expressly agreed otherwise in writing, only these terms and conditions apply to all sales and deliveries of goods (“Goods”) and services, as well as to all offers made by VAN LAERE INTERNATIONAL, C.B.E. no. 0420.539.144 having its registered office at 9220 Hamme, Zwaarveld 48, as well as by Herock Deutschland GmbH and any other company affiliated with VAN LAERE INTERNATIONAL (collectively “VLI”), to the buyer of such Goods or services ("Buyer").
1.2 These terms and conditions are accepted by the mere fact of negotiating with, ordering from, or entering into an agreement with VLI. These terms and conditions expressly exclude all other terms and conditions, Buyer's or otherwise, and always take precedence over any other terms and conditions.
1.3 The possible nullity or invalidity of one of the provisions of these general terms and conditions, in whole or in part, shall not affect the remaining provisions thereof. In such case the parties shall make all reasonable efforts to replace the (partially) null or invalid provision by a valid provision with a scope and content as close as possible to the (partially) null or invalid provision.
2. OFFERS AND ORDERS
2.1 All offers are non-binding, unless expressly stated otherwise in writing. Offers can be binding only to the extent they have been signed by an authorized representative of VLI, and only for a period of 30 days from the date of offer and/or order, unless expressly stated otherwise in writing, or when VLI commences the delivery thereof.
2.2 Every order is valid and binding on Buyer after having been communicated to VLI in writing. Unless expressly approved in advance by VLI, the order cannot be changed nor cancelled by Buyer. Orders become binding on VLI only after order confirmation or execution thereof by VLI.
3. DELIVERY OF THE GOODS
3.1 Any terms of delivery or execution are approximate and informative only and are therefore not binding, unless otherwise provided in writing. Under no circumstances shall a delay in delivery and/or performance give rise to any penalty, sanction, damages, rescission of any agreement or liability of VLI. Partial deliveries are allowed, and late or partial delivery shall not constitute grounds for rejection of the Goods and/or non-payment by Buyer.
3.2 VLI is entitled to suspend execution in case of full or partial default of payment on the due dates in accordance with the payment terms. Buyer must ensure that deliveries can be made on the (approximate) specified delivery date. If delivery on that date is not possible at the delivery address of the Buyer, the Buyer must provide VLI with an alternative delivery address. If receipt is refused by the Buyer, the Goods will be stored at the Buyer's risk and expense. All additional costs are always for the Buyer's account. Risk due to loss, theft or damage, among other things, passes to the Buyer at the time of delivery.
3.3 If the delivery of the Goods of services cannot be realized by VLI, for whatever reason, its liability for damages shall in any case be limited in accordance with Article 7 of these general terms and conditions.
3.4 Unless otherwise agreed and/or indicated otherwise on the order form and/or invoice, delivery shall take place at the place and time of arrival of the carrier in the warehouse of the Buyer (otherwise according to Incoterm Delivered At Place (DAP) - Incoterms 2020). Unloading of the means of transport, even by the carrier, takes place at the Buyer’s risk, who is deemed to have been present during onloading.
3.5 When VLI, in case of Incoterms rule other than DAP, has to organize the transport, VLI is always acting as the Buyer's agent, at the Buyer's risk. The costs for transport will be borne by the Buyer, as stipulated in Article 5.1.
3.6 Regardless of the applicable Incoterms rule, and without prejudice to the rights that VLI may assert against the carrier in this regard, the Buyer is required to assert any complaint, recourse and/or legal claims against the carrier, on pain of forfeiture of any right of action against VLI.
4. RETENTION OF TITLE AND RIGHT OF RETENTION
4.1 All Goods delivered or to be delivered remain the sole property of VLI up until complete payment of the purchase price by the Buyer, increased with costs and/or interest, if any.
4.2 The retention of title serves as a security for all present and future claims of VLI against Buyer for Goods and services delivered by VLI to Buyer.
4.3 The Buyer is not entitled to pledge or give as security the Goods subject to the retention of title as described in Article 4.1. In the event of any arrest, attachment, or any other involuntary dispossession or encumberment of the Goods as a result of actions by third parties, the Buyer must clearly and promptly declare the ownership of VLI and notify VLI immediately in writing, so that VLI can assert its ownership rights accordingly.
4.4 Notwithstanding the retention of title to the Goods delivered or to be delivered in favor of VLI, the Buyer shall bear the full risk of loss and/or damage, including force majeure situations, from the moment of delivery.
4.5 The Buyer has the right to mingle, or to incorporate the Goods into a new product or products. In this case, VLI's retention of title shall pass to the final product(s) into which the Goods are mingled or incorporated. The Buyer must store the final goods separately and such goods remain the property of VLI until full payment for the Goods has been made.
4.6 Buyer may sell the Goods in the ordinary course of its business, provided that until the Buyer has completely paid its debt to VLI, the Buyer assigns his claims for the proceeds from any sale, for the amount of the price of the Goods to VLI and pursues payment thereof on behalf of VLI, and if necessary, collects the amounts due via the appropriate legal proceedings. At the request of VLI, the Buyer shall allow VLI, in name of the Buyer, to conduct all legal proceedings to recover amounts due from third parties as a result of transactions involving the Goods, or to pursue any retention of title. All amounts recovered by VLI from such proceedings (including amounts recovered out of court by VLI, whether or not equal to the amounts claimed) will be applied towards payment of amounts owed by the Buyer to VLI and thereafter towards all costs incurred by VLI in the course of such proceedings. The remaining amount will be paid to the Buyer.
4.7 Prior to any sale or transfer of possession of the Goods, the Buyer must, in so far as reasonably possible, store the Goods separately from similar goods of the Buyer, mark the Goods as the property of VLI, and not remove, obliterate or in any way alter any label, mark or other means by which VLI may identify the Goods.
4.8 VLI is further, in any case, not obliged to deliver the Goods if the Buyer does not pay the agreed price in a timely manner and VLI has not allowed the Buyer any (additional) period for payment.
5. COMPLAINTS, RETURNS AND EXCHANGES
5.1 Complaints about visible defects in the Goods must be sent to VLI in writing by registered mail within eight calendar days of receipt of the respective Goods. Complaints about hidden defects in Goods and services must be received by VLI in writing by registered mail within eight calendar days from the date Buyer discovered or could reasonably have discovered the defect.
5.2 In the absence of a timely complaint, Buyer is deemed to have accepted the delivered Goods in the condition they were in at the time of their delivery.
5.3 Goods being subject of a complaint by the Buyer may only be returned if VLI has given written consent thereto. Returning is always at Buyer’s expense. Any such consent, negotiation or investigation on behalf of VLI shall be deemed to be a commercial concession and shall in no way constitute an adverse acknowledgement on VLI’s part.
5.4 VLI reserves the right, if it deems the complaint justified, to either replace the Goods or refund the value thereof, and such in any case without any additional compensation of any kind.
5.5 Goods purchased by the Buyer and/or delivered by VLI may be exchanged only if expressly agreed to by VLI in writing.
6. PAYMENTS
6.1 Unless otherwise expressly provided, all prices are exclusive of VAT, taxes, levies, customs duties, costs of packaging, insurance and transportation of the Goods (the latter except in case of DAP delivery), which shall be charged separately to the Buyer and, where applicable, costs for transportation, delivery or pickup outside normal business days (being Monday through Friday, excluding legal holidays) and/or business hours (being between 9 a.m. and 5 p.m.), which shall be charged additionally and separately to the Buyer.
6.2 All invoices are payable within 30 days from invoice date, unless expressly provided otherwise. Payment must be made to the bank account indicated in writing by VLI. In case of dispute, the invoice must be protested in a motivated manner by registered mail within 8 business days after sending of the invoice. Complaints, including those described in article, can in no way be considered a protest of an invoice within the meaning of this article.
6.3 In the event of non-payment or late payment, the outstanding invoice amount shall be increased, by operation of law and without any prior notice of default being required, by a fixed compensation of 10% of the due invoice amount, with a minimum of 70 euros. In addition, by operation of law and without any prior notice of default being required, statutory interest shall be payable, which shall be calculated in accordance with the Belgian Act of 2 August 2002 on combating late payments in commercial transactions. In the event of late payment of one or more invoices, all invoices shall become due immediately.
7. LIABILITY - FORCE MAJEURE
7.1 Except in cases of fraud or willful misconduct, VLI's total liability per order is limited to no more than the amounts paid by the Buyer to VLI with respect to the order giving rise to VLI's liability.
7.2 VLI is not liable when non-execution or delay in execution of any order is due to illness, accident, temporary disability, or force majeure. Force majeure means any circumstance independent of VLI, which reasonably prevents normal performance of its obligations, including, but not limited to, strikes and lockouts, cyberattacks or cyber security incidents, as well as delays in delivery or non-delivery by a supplier of VLI of a delivery related to the Goods.
7.3 If the Buyer does not accept delivery in a timely manner, or if an event of force majeure prevents VLI from delivering the Goods or from delivering in a timely manner, VLI reserves the right to extend all possible deadlines with the duration of the delay incurred. VLI may furthermore cancel any uncompleted parts of sales, deliveries, offers and orders without being liable for compensation therefor.
7.4 Destruction of raw materials, processed or in-process substances or (semi-)finished products due to fire or any other damage, shall permit VLI, at its option, to cancel all or part of the orders to which these substances are destined, without being liable for compensation therefor.
7.5 In case the Goods delivered by VLI are originating from third parties, any warranty is limited to the warranty as provided by the manufacturer or supplier of such Goods, if any, with no warranty period exceeding one year. Any warranty is, also in this case, limited to the repair or the replacement of the product. Any warranty expires, in any case, in case of (i) wrong or abnormal use, as well as non-compliance with the terms of use, (ii) causes not inherent to the product and (iii) intervention by third parties. For any services performed by VLI, any warranty period is limited to 3 months.
8. TERMINATION
8.1 Any agreement, offer and/or order may be terminated without judicial intervention in the following circumstances:
8.1.1 in case of breach by a party of any of its obligations under the agreement, offer and/or order and if no remedy is given within thirty days after notice of default by registered letter, the other party may terminate the agreement with immediate effect by sending a second registered letter;
8.1.2 in case of bankruptcy, insolvency, liquidation or voluntary dissolution of the Buyer or VLI, the other party may terminate the agreement by written notice.
8.2 In case of termination, rescission or cancellation by the Buyer for any other reason, a lump sum cancellation fee of 25% of the offer amount shall in each case be due to VLI, without prejudice to VLI's right to prove its full damages and claim them from the Buyer.
9. APPLICABLE LAW AND JURISDICTION
9.1 All disputes concerning the conclusion, interpretation, execution and/or termination of the agreements between the parties and these general terms and conditions shall be settled in accordance with Belgian law, to the exclusion of the 1980 Vienna Sales Convention.
9.2 In case of dispute, only the courts of the Ghent, Dendermonde division, Belgium have jurisdiction.
9.3 Any claim against VLI shall be time-barred and therefore inadmissible unless proceedings on the merits to obtain compensation for such claim were brought against VLI within one year after the delivery of the Goods.