General Sales Conditions Trayco®nv (ed. 03/2013)
1.1 These conditions apply to all agreements engaged in and all quotes provided by Trayco® (hereinafter 'the seller'). These general conditions are applicable subject to changes, which must be expressly agreed in writing by both parties.
1.3 If any provision in these conditions were to be (declared) null and void, all other provisions in these conditions remain fully in force and the seller and the customer will in good faith discuss to agree a new provision to replace the voided or nullified provision, of which the intent and meaning shall, as far as possible, consider the intent and meaning of the voided or nullified provision
2. Creation of the agreement
2.1 The agreement is deemed to have been created when, after receipt of an order, the seller confirms acceptance of that order in writing, within the time frame stipulated by the buyer, if applicable.
2.2 if the seller, in making an offer, sets a time frame for the acceptance of that offer, the agreement is deemed to have been created when the buyer, prior to expiration of that time frame, has confirmed acceptance of that offer in writing, in the understanding that no agreement has been created if such written confirmation is not received within one week of the lapsing of that time frame.
2.3 The cancellation of a placed order is only possible if the option to do so has been agreed in advance by the seller. In the event of a cancellation, the customer is always, automatically, and without notice of default, liable to pay a lump-sum of 10% of the price of the order, unabated the right of the seller to evidence higher damages and claim compensation for that higher amount.
3.1. The seller shall be bound only by the prices stated on outgoing order confirmations.
3.2 The price lists circulated by the seller are for illustrative purposes only, the seller cannot be bound to them.
3.3 Unless expressly indicated otherwise, all prices stated in a quote, order confirmation, agreement, etc. are exclusive of VAT.
3.4 Unless expressly indicated otherwise, for deliveries taking place within Belgium all prices stated in a quote, order confirmation, agreement, etc. are DDP (Incoterms 2011), with the understanding that the timely unloading (including any equipment required to do so, such as fork lifts or cranes) are the responsibility of the customer. By way of exception to the provision in the previous section, deliveries within Belgium with a net value of less than 250 EUR are always subject to a lump-sum transport cost of 25 EUR.
3.5 Unless expressly indicated otherwise, deliveries outside of Belgium, all prices stated in a quote, order confirmation, agreement, etc. are EXW Oudenaarde (Incoterms 2011).
4. Delivery times
4.1. Unless otherwise agreed, the delivery time runs from the latter of the following dates
a. the day of the agreement being created, as set out in article 2.
b. the day on which the seller receives an instalment payment if the agreement stipulates an instalment payment prior to commencing manufacturing.
4.2. Unless otherwise agreed, the delivery times stated in the agreement are estimates only: any delay can never give rise to termination of the agreement or to any compensation for damages.
4.3. If the buyer does not take delivery of the goods at the time they are offered by the seller, this does not permit the buyer to delay payment beyond the due date agreed for that delivery. Any storage of goods by the seller is provided at the expense and risk of the buyer. If the buyer so requests, the seller will ensure, at the expense of the buyer, that the goods are insured. Expenses for redelivery of these goods are also always to be borne by the buyer.
5. Drawings and descriptions
5.1. The weights, measurements, capacities, and other data, recorded in catalogues, prospectuses, circulars, adverts, images, and price lists are of an approximate nature. This data only binds as far as the agreement expressly refers to them.
5.2. The drawings and technical descriptions made available to the buyer prior or, or after, creation of the agreement, based on which all or part of the manufacturing is made possible, remain the exclusive property of the seller. Such documentation may not be used, copied, multiplied, passed on, or otherwise made known to third parties by the buyer. However, they are the property of the buyer:
a) if this has been expressly agreed, or
b) if they pertain to a previous development agreement, separate from the implementation agreement, in which the seller did not retain the ownership rights.
5.3. Within the framework of product improvement, automation, or other efficiency improvements, the seller is entitled at all times to make adjustments to it products, so long as these adjustments do not move away from the primary purpose.
6. Force majeure:
6.1. Every order acceptance by the seller is subject to force majeure, force majeure includes, if they occur after creation of the agreement and undermine the performance of that agreement: labour disputes and all other circumstances, such as fires, mobilisation, confiscation, embargo, prohibition on currency transfer, rebellion, shortage of transport means, floods, general scarcity of resources, restrictions on energy usage, etc. This list is not exhaustive. In case of force majeure on the part of the seller, the obligations of the seller in respect of the customer are suspended for the duration of the force majeure.
6.2 If a situation of force majeure has lasted more than sixty days, the customer is entitled to cancel the order without requiring the prior consent of the seller. In such circumstances the customer will not be entitled to claim compensation for damages from the seller. Any part of the agreement that had already been delivered or performed by the seller shall be settled pro rata.
7. Transport and receipt of goods
7.1 Deliveries by the seller within Belgium are made DDP (Incoterms 2011), in accordance with the provisions in article 3.4. The delivery may, at the request of the customer and upon prior written consent by the seller, take place at an address other than that of the customer (i.e. a wharf). The delivery time indicated by the seller is always indicative only and concerns only the date of the delivery, never the hour.
7.2 Deliveries by the seller outside of Belgium are made EXW (Incoterms 2011), in accordance with the provisions in article 3.5. If the ordered goods are not collected by the customer on the delivery date, the seller is entitled to charge any resulting storage costs to the customer.
7.3 If the seller delivers goods on stacking racks, these are charged to the customer at a cost of 180 EUR per stacking rack. If the stacking racks are returned to the seller in good condition, the amount paid for those stacking racks by the customer will be credited. The seller can never be required to take more stacking racks off the customer than the seller originally supplied to that customer.
8.1 The customer must inspect the goods immediately after delivery. The customer is required to make complaints in writing to the seller, on punishment of forsaking any claim, within eight days of delivery of the goods to which the complaint relates. The written complaint should contain a detailed list of the deficiencies. The use of a delivery, or any part thereof, irrevocably constitutes acceptance of the entire delivery.
8.2 The seller must be notified of any complaints pertaining to hidden deficiencies, on punishment of forsaking any claim, in writing and within 8 days after the discovery of the hidden deficiencies. The ‘short term’ set by Article 1648 of the Civil Code, between the parties, constitutes 2 months from the discovery of the deficiency.
8.3 If there is a visible or hidden deficiency of which the seller has been informed timely and in accordance with this article, the seller is always entitled to provide replacement of such goods. The seller can never be obligated to replace or take back the delivered goods. Goods will only be taken back with the prior written consent of the seller. In the event of such written consent by the seller, the seller will take the initiative to collect the goods to be returned and bare any expenses of doing so. The goods must be found in their original state.
8.4 If there is a visible or hidden deficiency of which the seller has been informed timely and in accordance with this article, and the seller decides in accordance with article 8.3 to replace the goods, the seller can thereby not be held liable to pay any other compensation. If there is a visible or hidden deficiency of which the seller has been informed timely and in accordance with this article, and the seller decides in accordance with article 8.3 to not replace the goods, and a contractual fault is proven, the seller shall only ever be liable to pay compensation limited to at most the price of the goods involved, exclusive of VAT. Under no circumstances can the seller be held liable to pay compensation for any indirect or immaterial damage (including, but not limited to, profit loss, missed opportunities, other consequential damage, etc.).
8.5 The seller can under no circumstances be held liable for any damage to, or defect of, the supplied goods if it results from the use of those goods in a specific environment.
8.6 Any liability on the part of the seller, regarding the supplied goods, is limited to a period of 6 months from the date the goods were delivered. After this period lapses, the customer can no longer hold the seller liable for any deficiencies to the supplied goods.
9. Retention of title
9.1 The supplied goods remain the property of the seller until payment of the principal sum, costs, and accessories has been made in full. In the event of resale, the seller retains the option to claim the sum corresponding to the value of the resold goods. The retention of title is transferred onto the resale price. Once the goods have been supplied, all risks, including events of force majeure, destruction, and storage duties pass to the buyer. Non-payment of any one of the amounts owed on their respective due dates may result in reclaiming of the goods.
9.2 This retention of title also covers events of insolvency on the part of the customer, insofar as those goods are physically held by the customer and have not become immovable due to incorporation.
10.1 All payments take place in EURO, or such currency as provided for in the agreement, such payments are net amounts and discount-free.
10.2 The prices are calculated based on the day rate of resources, wages, and social costs. For on-demand orders, cost forwarding may occur in the event one of the parameters is subject to an increase in cost, such forwarding only to occur with evidence for the relevant figures.
10.3 Except if otherwise stipulated in the agreement, all invoices are payable within a period of 30 days of the date of the invoice. If the buyer does not make payment within the time frame agreed, or in the absence thereof, within the statutory period of payment, the seller is as of the day thereafter, automatically and without notice of default, entitled to the payment of interest at the reference interest rate increased by seven percentage points and rounded up to the next half percentage point. The reference interest rate is the interest rate applied by the European Central Bank in its most recent basic refinancing transaction as defined by the law dated 2 August 2002. In addition, in the event of the buyer failing to make payment before the agreed payment deadline, or in the absence thereof, within the statutory payment period, the seller, without diminishing his entitlement to compensation for legal expenses in accordance with the relevant provisions of the Belgian Code Judiciaire, retains the right to reasonable compensation for losses from the seller for all relevant collection charges arisen from the arrears. The fact that interest is being charged does not stop the payments from being claimable as of their due date.
10.4 All current and future taxes, and additional levies and costs, of any nature, connected to the sale are borne by the buyer.
11. Assurances to be provided by the customer
11.1 The customer commits to supply to the credit insurer all information the credit insurer of the seller deems required to assess the credit worthiness of the customer.
11.2 If the amount owed by a customer to the seller, meaning the combined amount of the unpaid invoices and the value of the, by the seller, yet to be performed orders, exceeds the limit determined by the credit insurer of the seller for that customer, the seller is entitled to suspend all commitments to that customer immediately until the amount owed by that customer to the seller (including those amounts that will come payable when the seller fulfils the suspended commitments) has fallen back below the aforementioned limit.
11.3 If the confidence of the seller in the credit worthiness of the customer is affected by legal processes of execution and enforcement against the customer and/or demonstrable other events take place which affect, or could affect, the confidence of the seller in the proper execution of the commitments engaged by the customer, the seller retains the right to require suitable assurances of the buyer. If the customer refuses to supply such suitable assurances, the seller retains the right to cancel the order in part or in full, even if the goods have, or have partially, been shipped. In such an event, the customer is always, automatically, and without notice of default, liable to pay a lump-sum of 10% of the price of the order, unabated the right of the seller to evidence higher damages and claim compensation for that higher amount.
12. Termination clause
12.1 If an invoice is not paid by its due date, or if article 12 is applied, the agreement will be legally terminated by way of the seller expressing his desire thereto by way of simple registered letter, without prior notice of default. In such event, the seller retains the right to reclaim any delivered goods without intervention by the courts. Furthermore, a compensation for damages to the amount of 15% of the price, with a minimum amount of 250 EURO will be payable.
13.1 Only the courts of the judicial district of Oudenaarde are competent to judge disputes regarding the creation, performance, non-performance, etc. of any of the agreements engaged in, or quotes sent out, by the seller.
13.1.1 The agreements engaged in and quotes sent by the seller are subject exclusively to the Law of Belgium, with exclusion of the regulations of private international law (including the CISG and other comparable treaties).