TERMS AND CONDITIONS
BAYENAY-PERGASHOP

Rue d'Elvêche 8
7730 Néchin
Belgium

Phone BE: 00 32 475 58 07 81
Phone FR: 00 33 6 34 61 34 72
Email: [email protected]
VAT number: BE0891 716 149

Article 1 Applicability of these Terms & Conditions.

• 1.1 These Terms & Conditions apply to all legalities whereby the vendor operates as vendor, supplier of business or service provider. The applicability of purchaser's actual Terms & Conditions is hereby expressly rejected.
  
  Article 2 Order Confirmation and Realization Agreement
• 2.1 An agreement is achieved solely by means of the vendor's written order confirmation. In respect of the content of the agreement (in particular the scope of the services) the vendor's order confirmation is solely decisive. Changes and/or amendments in the contract are only valid when the changes and/or amendments are confirmed in writing by the vendor.
• 2.2 In respect of images, descriptions and drawings as well as size and weights described in our offers, brochures, catalogues and price lists, the vendor reserves the right to apply amendments which either do not significantly change the object in question or which improve the quality of the item. If the vendor displays or provides a model, sample or example this is only done as means of an indication of the product. The properties of the goods to be delivered may differ from the sample, model or example.
• 2.3 The vendor's prices, from warehouse or from factory, are including VAT. The invoice currency is €/Euro unless otherwise agreed. Shipping of the goods takes place at the expense and risk of the purchaser. The vendor will detail the invoice in accordance with the applicable legislation. In the case where a European purchaser's VAT identification number is unknown, the current Belgium VAT tariff will be charged. Bayenay-Pergashop does not apply a minimum order amount.
• 2.4 Shipping to the customer's location is free of charge. By placement of an order below 40 € amount the webshop will calculate 15€ of charge.
• 2.5 In an agreement, the applicable prices are those (in accordance with the vendor's price lists) which are agreed during the realization of the contract. The costs of samples provided on request of the customer will be for the account of the customer. Samples that are not charged will, upon request, be returned at the cost of the customer.
• 2.6 As a rule, payments must be made in advance.
• 2.7 In the event of liquidation, bankruptcy or suspension of payment on behalf of the purchaser or when the law on debt repayment applies to the purchaser, the charges against the purchaser will be immediately claimable.
• 2.8 Payments made by the purchaser will always firstly be applied to the settlement of all owed interest and costs, secondly to the settlement of the longest due unpaid invoices even if the purchaser declares the payment to be for a later invoice. Payment must be made without deductions or offsets. Vendor reserves the right to require advance or cash payments or equivalent value collateral.
• 2.9 14 days after the expiry of the invoice date the purchaser is in payment default. From the moment of default the purchaser requires to pay over the amount due an interest charge of 1% per month. Moreover, as a result of payment arrears, all other open invoices, even though not yet due, become immediately claimable. Payments by cheque or by direct debit are only valid once monies have definitely been credited.
  
  Article 3 Delivery.
• 3.1 Unless otherwise agreed, delivery will be made from the warehouse or from the factory. When one of the ‘incoterms' is agreed as a delivery condition, the incoterms valid at the time of agreement realization will be applicable. The risk of destruction and/or deterioration of the goods is transferred to the purchaser as soon as the goods are consigned to transport. This applies regardless of the delivery destination and whoever bears the transport costs.
• 3.2 The purchaser is obliged to accept delivery of the purchased goods at the time these goods are delivered or offered to the purchaser. In the case where the purchaser refuses delivery or fails to provide information or instructions required to facilitate delivery, the goods will be stored at the risk of the purchaser. In this situation the purchaser will be responsible for all additional costs including at least the cost of the storage and transportation.
• 3.3 If the purchaser chooses special shipping (such as express, couriers etc.), the extra costs will be borne by the purchaser.
• 3.4 The vendor reserves the right to deliver sold goods in partial deliveries. This does not apply if a partial delivery has no independent value. If the goods are delivered in partial deliveries the vendor is entitled to invoice each installment separately.
• 3.5 If on-demand orders are agreed upon and the purchaser does not call for issue of the goods within the agreed period or in the absence of an agreed period within 12 months from the initiation of the on-demand agreement, it will be deemed that the on-demand agreement will validate on the last day that orders may be called up for issue, respectively in the absence of a call-up period, 12 months after the realization of the on-demand agreement. In this case the vendor is entitled to store the relevant goods at the expense and risk of the purchaser.
  
  Article 4 Delivery Time and Force Majeure
• 4.1 An agreed delivery time is not a deadline unless otherwise expressly agreed. In the case of late delivery the purchaser requires to serve the vendor with a written notice of default.
• 4.2 The delivery times are based on individually made agreements. The delivery time terms are fulfilled once the goods are ready for transport and this has been communicated to the purchaser.
• 4.3 Vendor is not obliged to fulfill any obligations, including those to fulfill the agreed delivery time, if prevented from doing so due to a circumstance that is not attributable to gross negligence or intent on the part of the vendor and is accountable neither under law, legal action nor in generally accepted traffic concepts. Force Majeure is understood in these terms & conditions, in addition to what is understood in law and jurisprudence, to include all external causes, foreseen or unforeseen, on which vendor has no influence, but which prevent vendor from fulfilling its obligations. Strikes of personnel in the vendor's company, illness of personnel, theft, traffic restrictions, frost, rain and stagnation in the delivery of materials or products by suppliers are understood as being included.
• 4.4 Vendor will inform the purchaser if a Force Majeure situation arises. In this situation the purchaser has no right to terminate the agreement. If the expectation is that the vendor will not be able to fulfill its services within a reasonable time (at the latest within 4 months) then both the vendor and purchaser may cancel the contract. The same applies if the causes still exist 4 months after the vendor's notification. Should the causes for untimely delivery be identified during the making of the agreement then the vendor is not entitled to termination.
  
  Article 5 Termination of the Agreement
• 5.1 Vendor's claims against the purchaser are immediately due if: - After entering into the agreement the vendor becomes aware of circumstances that give good reason to assume that the purchaser will not fulfill its obligations; - The vendor has requested the purchaser to provide security of fulfillment and this security is not provided within the prescribed period or is insufficient.
• 5.2 In the aforementioned cases, the vendor is entitled to suspend or terminate the further fulfillment of the agreement without prejudice to the right to claim damages.
• 5.3 Vendor is entitled to terminate the agreement in the event of circumstances occurring in respect of persons and/or material which the vendor utilizes, while carrying out or intending to carry out the agreement, which are such that the performance of the agreement becomes impossible or problematic and/or disproportionately expensive that fulfillment of the agreement obligations cannot reasonably be expected
  
  Article 6 Guarantee.
• 6.1 The vendor warrants that the goods supplied are free from design, material and manufacturing defects for a period of 1 year from the time of delivery
• 6.2 If a complaint is found to be justified under the warranty of the vendor, the vendor can only be held to his choice to either supply the missing goods, to replace the goods relating to the complaint or, on return of the goods to which the complaint relates, to reimburse the purchaser.
• 6.3 For damage caused by a defect in the delivered goods, the vendor is liable in accordance with article 10 (Liability).
• 6.4 The guarantee is void if the purchaser causes the damage by improper handling of a guaranteed product.
• 6.5 If the defect of the product can be attributed to a third party then the vendor is entitled to transfer the warranty claim against the relevant supplier to the purchaser. In that case the vendor may first be held responsible if the purchaser has validated the claim against the relevant supplier.
  
  Article 7 Retention of Title
• 7.1 The goods delivered by the vendor remain the property of the vendor until the purchaser has fulfilled all following obligations of the purchase agreement entered into with the vendor: - the compensation(s) with regard to delivered or to-be-delivered good/goods – the compensation(s) with regard to services rendered or to be rendered in accordance with the purchase agreement; - any claims due to purchaser's non–compliance of such agreement(s).
• 7.2 Unless the vendor determines otherwise, the property law consequences of business intended for export will be governed by the law of the country of destination of the relevant goods, if the retention of title under the laws of the destination country does not lose its effect until the full price is paid.
• 7.3 Goods supplied by the vendor that by virtue of paragraph 1 fall under retention of title, may only be sold on within the framework of a normal business practice. Moreover, the purchaser is not entitled to pledge or establish any other rights to the goods.
• 7.4 With regard to delivered goods which by payment have become the property of the purchaser and which are still in the possession of the purchaser, the vendor reserves the liens provided for in art. 3:237 BW as additional security for claims, other than stated in paragraph 1 of this article, of whatever nature that the vendor may have against the purchaser. The authority contained in this paragraph also applies in respect of goods supplied by the vendor which are treated or processed by the purchaser whereby the vendor loses its retention of title.
• 7.5 If the purchaser fails to fulfill the obligations or there is reasonable fear that the purchaser will not do so, the vendor is entitled to remove or arrange for removal of goods referred to in the paragraph 1 retention of title from the purchaser or from third parties holding the goods for the purchaser. The purchaser is obliged to cooperate fully in this under penalty of a fine per day of 10% of the amount owed by the purchaser.
• 7.6 If third parties wish to establish or assert any right to the delivered goods, the purchaser is obliged to inform the vendor as soon as can reasonably be expected.
• 7.7 The purchaser is obliged on request by the vendor
  – to insure and keep the goods delivered under retention of title against fire, explosion, water damage and theft and to produce the insurance policy for inspection;
  - to pledge to the vendor all of purchasers' claims on insurers in respect of the goods delivered under the retention of title in the manner prescribed ; - to pledge to the vendor the claims that the purchaser obtains in relation to purchaser's customers selling on the goods delivered by the vendor under retention of title in the manner prescribed in art. 3:239 BW;
  - to mark the goods delivered under retention of title as being property of the vendor;
  - to cooperate in other ways to all reasonable measures that the vendor will utilize to protect its rights of retention of title in respect of the goods and which do not unreasonably interfere in the purchaser's normal course of business.
  
  Article 8 Defects.
• 8.1 The purchaser requires at the time of delivery – or as soon as possible thereafter – to examine the goods (or have the goods examined). The purchaser hereby has to ascertain if the delivery adheres to the agreement: - if the correct products are delivered; - if the delivered goods comply with the agreement in terms of quantity (e.g. number and amount); - if the delivered goods meet with the agreed quality requirements or - in absence thereof –meet with the quality requirements pertaining to normal use and/or commercial purposes.
• 8.2 If visible defects or shortcomings are ascertained then the purchaser requires to notify the vendor in writing within 14 days from delivery.
• 8.3 The purchaser requires to notify the vendor in writing of non-visible defects within 14 days from time of discovery, but no later than 14 days after delivery.
• 8.4 If no timely objection is submitted then the delivery is considered as approved.
• 8.5 Even if the purchaser lodges a complaint within the time limits, its obligations for payment and acceptance of the goods remain valid. Goods can only be returned to the vendor after prior written permission from the vendor. Once permission has been received from the vendor, the purchaser can return the goods in question at its own expense. A copy of the invoice, the delivery note and the complaint form to be enclosed with the return shipment.
  
  Article 9 Collection Costs.
• 9.1 If the purchaser does not fulfill or fulfill on time one of his obligations then, besides the agreed price and costs, all costs incurred in obtaining payment out of court are for the account of the purchaser. These costs include the preparation and sending of reminders, the drawing up of a settlement proposal and the gathering of information. The costs mentioned above amount to at least 15% of the principle debt with an absolute minimum of € 350.00.
• 9.2 In all instances the purchaser requires to pay the vendor all legal costs incurred by the vendor, except where the purchaser can demonstrate that these costs are unreasonably high. This only applies where the vendor and the purchaser undertake legal proceedings in respect of an agreement whereby these general terms and conditions apply and a final judgment is entered whereby the purchaser wholly or predominantly has been unsuccessful.
  
  Article 10 Liability.
• 10.1 For defects in delivered goods, the guarantee as described in article 6 (Guarantee) of these terms and conditions is valid.
• 10.2 If the vendor is liable for damage then its liability is at all times limited to the provisions in this article. The vendor is only liable for damage due to willful misconduct or gross negligence on the part of the vendor or its management. The vendor is not liable for indirect damage, including consequential damage, lost profits, missed savings and damage due to business stagnation. In the case of damage, the claim will be lodged with the vendor's insurers and, when there is coverage, the liability of Craftlines for damages will be limited to the actual amount paid out by the insurers.
• 10.3 In the event that the insurers do not proceed to payment or when the damage is not covered by the insurance, the vendor's liability is limited to 5 times the invoice value excluding VAT to a maximum of € 2.500.00.
  
  Article 11 Ownership and Copyrights.
• 11.1 In the instances where the vendor makes use of samples developed by the vendor, then the vendor reserves all ownership and copyrights. Use by third parties without written permission of the vendor is prohibited.
  
  Article 12 Customer Details.
• 12.1 The vendor is entitled to store and process all relevant customer details in the context of the current legal requirements.
  
  Article 13 Dispute Resolution.
• 13.1 The Brussel (Belgium) District Court is exclusively authorized to take cognizance of all disputes which may arise between the vendor and the purchaser. However the vendor remains authorized to summon the purchaser before the court in the jurisdiction of the purchaser's domicile
  
  Article 14 Applicable Law.
• 14.1 Each legal relationship between the vendor and the purchaser is subject to the Law of The Belgium.
  
  Article 15 Amendments to the Terms & Conditions.
• 15.1 The vendor is authorized to make amendments to these terms and conditions. These amendments take effect from the notified date of entry into force.