Terms and Conditions
GENERAL TERMS AND CONDITIONS – VAN HAUT / VAN HAUT CONSTRUCTION MACHINERY – version dated January 2020
This is an English translation of the Dutch general terms and conditions. In the event of any discrepancy or difference in interpretation, the Dutch version shall prevail.
1. SCOPE
1.1. Without prejudice to the application of any special conditions included in a separate written agreement, these general terms and conditions apply to every offer, quotation or agreement between NV VAN HAUT, company number 0431.591.602 / NV VAN HAUT CONSTRUCTION MACHINERY, company number 0421.062.152, with registered office at Hogenakkerhoekstraat 4, 9150 Kruibeke (NV VAN HAUT and NV VAN HAUT CONSTRUCTION MACHINERY are hereinafter each referred to separately as “VAN HAUT”), and the customer.
1.2. In the event of a conflict between these general terms and conditions and any separate written agreement, the provisions of the separate written agreement shall apply.
1.3. Acceptance of these general terms and conditions also implies that the customer fully waives the application of its own general (purchase) conditions.
1.4. The customer acknowledges and accepts that the obligations of VAN HAUT contained in these general terms and conditions are merely obligations of means.
2. QUOTATIONS
2.1. All offers made by VAN HAUT are without obligation and as such do not bind VAN HAUT. Orders placed by the customer do not bind VAN HAUT either.
2.2. An agreement between VAN HAUT and the customer is only concluded after written confirmation by VAN HAUT of the customer’s order or (the start of) performance of the agreement by VAN HAUT. All agreements are definitively binding on the customer.
2.3. Any person who places an order in their own name or as the customer’s agent, or who pays the order in whole or in part, even on behalf of third parties, stands surety for those third parties and is jointly, severally and indivisibly bound with them, in accordance with articles 1120 et seq. and 1200 et seq. of the Belgian Civil Code.
3. PRICE
3.1. All taxes, duties and/or levies of any kind relating to the goods delivered, including new taxes, duties or levies introduced after the conclusion of the agreement, are borne entirely by the customer. Under no circumstances does the application of new taxes, duties or levies entitle the customer to terminate the agreement.
3.2. The prices applicable to the order are those of the most recent price communicated by VAN HAUT. No rights can be derived from obvious typesetting, printing or clerical errors in (online) catalogues or price lists.
3.3. All prices may be increased at any time in the event of, among other things, (i) a demonstrable increase in raw material prices/labour costs of more than 2%; or (ii) an increase in government levies on the ordered products/raw materials. The new price will be communicated to the customer in writing or by email at least one month before it takes effect.
4. PAYMENT
4.1. VAN HAUT’s invoices are payable at its registered office on the due date stated on the invoice, without discount. If no due date is stated, VAN HAUT’s invoices are payable no later than 30 days after the invoice date. Costs related to payment are borne exclusively by the customer.
4.2. If an invoice is not paid by the due date, late payment interest of 1% per month on the unpaid invoice amount is due by operation of law and without prior notice of default from the due date. A fixed compensation of 10% of the invoice amount still due (with a minimum of € 40.00) is also due by operation of law and without prior notice of default, without prejudice to VAN HAUT’s right to claim higher compensation upon proof of higher actual damage suffered.
4.3. If an invoice is not paid by the due date, all other claims against the customer that have not yet fallen due become immediately payable by operation of law and without prior notice of default. In that case, VAN HAUT also reserves the right to suspend the performance of all current orders, without prior notice of default and without compensation for the customer. In the event of payment problems, VAN HAUT is entitled to request full advance payment from the customer for current orders.
4.4. Payments made by the customer to VAN HAUT are first allocated to the oldest unpaid invoices that have fallen due and are payable. Allocation is made first to the costs due, then to the interest due and only lastly to the principal due. Set-off by the customer is expressly excluded, unless otherwise agreed in writing.
4.5. If at any time VAN HAUT has doubts about the customer’s creditworthiness due to enforcement measures against the customer, non-payment or late payment of an invoice and/or any other identifiable event, VAN HAUT expressly reserves the right to demand full advance payment for deliveries still to be made, or to request (other) security, even if the goods have already been shipped in whole or in part. If the customer refuses to comply with VAN HAUT’s request, VAN HAUT reserves the right to terminate the agreement immediately, unilaterally and without any compensation on its part. In that case, the customer owes fixed compensation of 15% of the total price of the order.
4.6. The customer grants VAN HAUT a pledge on all of its (future) movable tangible and intangible assets. The pledge entitles VAN HAUT to be paid in priority over the customer’s other creditors from the proceeds of the realisation of those movable assets of the customer. The pledge also extends to all claims that replace the encumbered assets and to the fruits produced by the encumbered assets. The pledge secures all (existing and/or future) claims of VAN HAUT arising from this agreement, up to a maximum of the principal and ancillary amounts such as interest, damages clause and enforcement costs. By signing this agreement, the customer authorises VAN HAUT to register its pledge in the National Pledge Register.
5. DELIVERY
5.1. VAN HAUT delivers the goods ‘ex works’, by making them available to the customer at its business premises (workshop, storage area, warehouse, factory, etc.). The customer is obliged to take receipt of the goods delivered by VAN HAUT at the agreed time (or earlier if the delivery period turns out shorter). If the customer does not take receipt of the goods, VAN HAUT is entitled to charge storage costs to the customer. If VAN HAUT is to deliver the goods to the customer itself or through an external carrier, the associated costs are always borne exclusively by the customer. The risk of transport, where the goods are damaged or lost during transport, as well as where they are damaged or lost during loading and unloading carried out by the customer or its agents, is borne exclusively by the customer. At the time of delivery, the customer must sign the delivery document for receipt. Signing this document implies acceptance of the delivery and of any visible defects.
5.2. Delivery periods communicated by VAN HAUT are merely indicative. The customer expressly and irrevocably waives any other possible remedy, in particular the award of any form of compensation. Nor may the customer, where applicable, obtain supplies elsewhere at VAN HAUT’s expense. Articles 1143 and 1144 of the Belgian Civil Code do not apply to the agreement between VAN HAUT and the customer.
5.3. The customer undertakes to take receipt of the goods sold immediately upon delivery and to examine whether the quality and/or quantity of the goods delivered corresponds to what was agreed. Any visible defects in the delivery must be stated on the delivery document or reported to VAN HAUT in writing no later than 3 working days after delivery, with the customer describing the defects in detail. Any use of the delivered goods by the customer in any event implies irrevocable acceptance of their delivery.
5.4. VAN HAUT reserves the right to make partial deliveries, each constituting a separate partial sale. Partial delivery of an order can in no case justify refusal to pay for the goods delivered.
5.5. Pallets, containers and other transport aids not intended for single use remain the property of VAN HAUT in all cases. The customer is obliged to return them at VAN HAUT’s first request and at its own expense. The customer may not make these pallets, containers and other aids available to third parties or use them for purposes other than those for which they are intended. If VAN HAUT receives the pallets, containers and other aids back damaged, the customer is liable and must fully indemnify VAN HAUT.
5.6. The customer is obliged to take receipt of the ordered goods on the scheduled delivery dates (or any other date communicated to the customer by VAN HAUT). If the goods are not received by the customer at the time of delivery, VAN HAUT is entitled to store the goods at the customer’s expense and risk. After a period of 1 week following the scheduled delivery, VAN HAUT is entitled to resell the goods concerned to third parties. In such a case, the customer must indemnify VAN HAUT for any lower proceeds, the additional costs VAN HAUT has incurred due to the customer’s default and any other damage VAN HAUT has suffered.
5.7. Delivery costs are not included in the price. If delivery requires the use of special equipment (e.g. a crane or forklift), or is difficult to access or install, a specialised company will be called in if necessary. These costs are always borne solely by the customer.
6. OWNERSHIP AND RISK
6.1. Ownership of the goods sold will only be transferred to the customer after the customer has paid in full everything owed to VAN HAUT in return for the goods delivered or to be delivered by VAN HAUT, including payment of the agreed price, costs, interest and any compensation.
6.2. Nevertheless, the risks of loss or destruction of the goods sold are borne entirely by the customer from the moment the goods sold have left VAN HAUT’s business premises. The customer shall at all times take care of the goods sold as a prudent and reasonable person, which at least implies insuring the goods against the usual risks.
6.3. Until ownership of the goods sold has effectively been transferred to the customer, the customer is expressly prohibited from using the delivered goods as a means of payment, pledging them or encumbering them with any other security interest. Insofar as necessary, this clause is deemed to be repeated for each delivery. The customer shall immediately notify VAN HAUT in writing of any attachment of the goods sold by third parties, and shall also immediately notify the acting bailiff in writing of VAN HAUT’s ownership of the attached goods.
7. VISIBLE AND HIDDEN DEFECTS
7.1. Any visible defects in the delivered goods must be reported to VAN HAUT in writing and in detail without delay and no later than 3 working days after delivery. Complaints about visible defects submitted after this period has expired will not be accepted by VAN HAUT. Such complaints are only valid and will only be examined provided the goods sold have not yet been put into use / processed by the customer.
7.2. Any hidden defects in the delivered goods must be reported to VAN HAUT in writing and in detail without delay and within 3 working days of their discovery. VAN HAUT’s liability for any hidden defects in the delivered goods is in any event limited to hidden defects that become apparent within 6 months of delivery of the goods. Complaints about hidden defects submitted in disregard of this double time requirement will not be accepted by VAN HAUT. In that case, any (legal) claim by the customer against VAN HAUT is inadmissible.
7.3. Unless expressly agreed otherwise between the parties, VAN HAUT is not deemed to be aware of, or to have taken into account, the specific application for which the customer will use the purchased goods, and VAN HAUT can therefore not be held liable for it. Only the customer is liable for the specific use it makes of the purchased goods and/or the purposes for which it uses these goods.
7.4. The customer accepts and acknowledges that VAN HAUT may also invoke against the customer the exceptions, exemptions and warranty limitations that the manufacturer can invoke against VAN HAUT.
7.5. Regardless of the period, the customer cannot bring any warranty claim based on visible or hidden defects if it has transformed and/or altered the goods and/or repaired the goods itself or had them repaired by a third party, all without VAN HAUT’s approval.
7.6. If a complaint about visible or hidden defects in the purchased goods is justified, the customer can only claim repair in kind or equivalent replacement by VAN HAUT, at VAN HAUT’s choice, to the exclusion of any other remedy such as return, (partial) refund or compensation. Such complaints do not suspend the customer’s payment obligation.
7.7. All warranty claims by the customer against VAN HAUT based on visible or hidden defects become time-barred 6 months after their timely and detailed notification. This period cannot be suspended and is only interrupted by legal proceedings.
8. EXEMPTION FROM LIABILITY
8.1. VAN HAUT undertakes to provide the customer with information relating to the agreement prior to its conclusion. However, VAN HAUT is not liable for the correctness, completeness or accuracy of the information provided to the customer before the conclusion of an agreement.
8.2. Except in the case of fraud, intentional or gross fault, VAN HAUT is not liable for or obliged to compensate immaterial, indirect or consequential damage, including (but not limited to) loss of profit, loss of turnover, loss of income, production limitations, administrative or personnel costs, an increase in overheads, loss of customers or third-party claims. The sole remedy for compensation of damage consists, at VAN HAUT’s choice, of either replacement or reimbursement of the purchase value. An “intentional fault” only exists where that fault was knowingly and deliberately committed by VAN HAUT with the intention of harming the customer.
8.3. VAN HAUT is not liable towards the customer for gross or intentional faults committed by its employees, staff and/or representatives in the course of their professional activities.
8.4. Any claim by the customer for compensation against VAN HAUT lapses by operation of law if it has not been brought before the competent court within 6 months after the facts on which the claim is based were known or could reasonably have been known to the customer. This period cannot be suspended and is only interrupted by legal proceedings.
9. TERMINATION
9.1. VAN HAUT is entitled to terminate the agreement with the customer at any time, with immediate effect, without prior judicial authorisation, without prior notice of default and without payment of any compensation, in the following cases:
- if the customer, despite written notice of default in which VAN HAUT allows a period of at least 10 calendar days, fails to perform one or more obligations arising from the agreement in a timely and proper manner;
- in the event of suspension of payments or (an application for) bankruptcy;
- in the event of liquidation or cessation of the customer’s activities;
- if control over the customer changes;
- if (part of) the customer’s assets are attached;
- if VAN HAUT has good reason to doubt that the customer will fulfil its obligations towards VAN HAUT.
9.2. In the event of termination, the customer owes VAN HAUT fixed compensation of 15% of the price invoiced or normally to be invoiced under the agreement, without prejudice to VAN HAUT’s right to claim payment of higher actual damage suffered. Termination also makes all claims of VAN HAUT against the customer, on whatever grounds, immediately payable.
10. FORCE MAJEURE
10.1. Since the customer’s obligation towards VAN HAUT is essentially a payment obligation, force majeure on the part of the customer is expressly excluded.
10.2. VAN HAUT is released by operation of law and is not obliged to perform any obligation / pay any compensation towards the customer in the event of force majeure. “Force majeure” means the situation in which the performance of the agreement by VAN HAUT is prevented in whole or in part, whether or not temporarily, by circumstances beyond VAN HAUT’s control, even if this circumstance could already be foreseen at the time the agreement was concluded. Without aiming to be exhaustive, the following are in any event considered cases of force majeure: exhaustion of VAN HAUT’s stock; delays in or failure of deliveries by VAN HAUT’s suppliers; loss of goods; machine breakdown; (wildcat) strikes or lock-outs; fire; riot; war; epidemic; flooding or water damage; (high) sickness absence; electrical, IT, internet and telecommunication failures; “fait du Prince” – government decisions or interventions (including the refusal, suspension or cancellation of a permit, licence or concession); fuel shortages; weather conditions and/or traffic jams, in particular where planned deliveries are prevented because the customer is physically unreachable; … .
10.3. VAN HAUT is not obliged to prove the non-attributable and unforeseeable nature of the circumstance constituting force majeure.
10.4. In such a case, VAN HAUT undertakes to make all reasonable efforts to limit the consequences of the force majeure situation for the customer. If, at the onset of force majeure, VAN HAUT has already partly fulfilled its obligations or can only partly fulfil them, VAN HAUT may invoice the part already delivered separately, or deliver and invoice the part still to be delivered.
11. SEVERABILITY
11.1. If any provision (or part thereof) of this agreement is unenforceable or contrary to a mandatory provision of law, this shall not affect the validity and enforceability of the other contractual provisions, nor the validity and enforceability of that part of the provision concerned that is not unenforceable or contrary to a mandatory provision of law. In such a case, the parties shall negotiate in good faith to replace the unenforceable or conflicting provision with an enforceable and legally valid provision that comes as close as possible to the purpose and scope of the original provision.
12. APPLICABLE LAW – COMPETENT COURT
12.1. This agreement, as well as all other agreements between VAN HAUT and the customer, are governed exclusively by Belgian law. The application of the Vienna Sales Convention of 11 April 1980 is expressly excluded.
13. All disputes between the parties concerning this agreement, as well as all other agreements arising from it, fall under the exclusive jurisdiction of the Enterprise Court of Ghent, Dendermonde division, or where applicable the Court of First Instance of East Flanders, Dendermonde division, or the Justice of the Peace of Beveren.
