Clause 1: GeneralExcept where otherwise expressly agreed in writing, the customer shall be deemed to have accepted the following Terms and Conditions of Sale at the time of placing an order.
These terms and conditions apply to every offer, quotation, purchase agreement, and other agreements and related activities as well as to all agreements between HDM NV. and a customer, to which HDM NV. has declared these terms and conditions to be applicable, except to the extent that the parties explicitly deviate from these terms and conditions. HDM NV. shall not accept any references made by customers to their own terms and conditions.
Once a contract has been concluded with the customer subject to the present terms and conditions, the customer shall be deemed to have automatically agreed to these terms and conditions being applicable to all subsequent contracts with HDM NV.
Deviations from these terms and conditions shall only be valid insofar as HDM NV. accepts them in writing.
Clause 2: PricesUnless otherwise stated, our prices are:
- Based on ex-works, ex-warehouse or ex- other storage depot of HDM;
- Exclusive of VAT, import duties, other taxes, levies and duties;
- Exclusive of the costs of packaging, loading and unloading, transport and insurance;
- Expressed in terms of Euros (€).
HDM NV. may charge the price applicable at the time of delivery according to the price list applicable at that time. If the price increase exceeds 10%, the customer shall have the right to dissolve the agreement.
Clause 3: ConformationOrders placed through our representatives shall only bind the seller after the principal/customer confirms the same in writing. If goods are returned due to incorrect ordering by the customer, 20% of the value will be charged.
Clause 4: Duty to inform and cooperateThe customer shall ensure that HDM NV. is provided with all the data that the latter may reasonably require for the adequate fulfilment of the given order, in the desired form. The aforementioned documents shall be provided in the manner specified by HDM NV. The customer shall also provide all other necessary cooperation as may be required for the fulfilment of the order.
HDM NV. has the right to suspend the fulfilment of the order until the customer fulfils the obligations mentioned in the previous paragraph.
The customer is bound to compensate HDM NV. for the damage suffered due to such delay.
Clause 6: Security depositHDM NV. shall have the right at all times to demand sufficient security for the fulfilment of the other party’s payment obligations, before commencing or continuing the activities and before delivering or continuing with delivery.
If the requested security is not furnished, or not furnished satisfactorily, or if the legal form of the customer is changed, HDM NV. shall have the right to dissolve the agreement in whole or in part without judicial intervention, and to recover possession of items that have already been delivered, without prejudice to the rights of HDM NV. with regard to payment of the amounts payable on termination of the contract on the grounds of the work carried out and deliveries made.
Clause 7: Amendments to the AgreementIf changes are required in the fulfilment of the order after issuing it, the same must be notified to HDM NV. in time and in writing. If such changes are notified verbally or by telephone, the customer shall bear the risk of incorrect implementation of such changes.
HDM NV. reserves the right to change the price based on changes in the order.
Changes made to an order already issued may cause HDM NV. to exceed the delivery time agreed for such changes HDM NV. shall accept no responsibility for such delays.
Clause 8: Changes in the goods to be suppliedHDM NV. shall have the right to deliver goods that deviate slightly from the goods described in the (purchase) agreement, but that are technically and/or functionally the same. If HDM NV. avails of this possibility and delivers an item that deviates substantially from the agreed item, the customer shall have the right to dissolve the agreement. The customer shall have such right for 8 days after it has discovered the defect or could reasonably be expected to discover it.
Clause 9: DeliveryUnless otherwise agreed, the purchased or delivered items shall be at the customer’s risk with effect from the conclusion of the (purchase) agreement. Unless otherwise agreed, delivery shall be made at the customer’s home/factory.
Unless otherwise stipulated, the prices shall be based on Delivery Duty Paid (DDP) for order values from €250 onwards, exclusive of VAT. Below this amount, €22.50 shall be charged towards contribution to the transport costs.
The customer shall be bound to take delivery of the (purchased) goods as soon as the same are delivered or made available to it conformity with the contract. If the customer refuses to take delivery or is negligent in providing information or instructions required for delivery, the goods shall be stored at the customer’s risk. In such case, the customer shall be liable to pay all additional costs, which shall include storage costs in all cases.
Clause 10: Delivery periodAn agreed/specified delivery period is not a deadline, unless explicitly agreed otherwise. In case of late delivery therefore, the customer must issue HDM NV. with a written notice of default. Notice of termination of contract on the grounds of late delivery may be given subject to the observance of a prior termination notice period of 8 days that shall take effect at the earliest 30 days after the scheduled delivery date, without any compensation being claimed for the same. However, this possibility shall only exist after the payment of all overdue receivables from previous deliveries.
Clause 11: Partial deliveriesHDM NV. is permitted to deliver (sold) goods in parts. This shall not apply if a partial delivery has no independent value. If the goods are delivered in parts, HDM NV. shall have the right to invoice each part separately.
Clause 12: Defects; time limit for lodging complaintsThe customer shall inspect the (purchased) goods upon delivery - or as soon as possible thereafter - or have them inspected, or carry out such inspections after HDM NV. notifies it that the goods have been placed at the disposal of the customer. During such an inspection, the customer shall check whether the goods delivered comply with the agreement:
- whether the correct items have been delivered;
- whether the goods delivered correspond to the agreed quantity (e.g. number/quantity);
- whether the delivered goods meet the agreed quality requirements or, in their absence, the requirements that may be imposed on normal use and/or for commercial purposes.
HDM NV. must be notified in writing of invisible defects within 48 hours after discovery, but within a maximum of 1 week after delivery. After the expiry of this period, the agreed items shall be deemed to have been delivered correctly.
No complaints relating to items/goods that have already been wholly or partially processed shall be entertained.
A timely complaint by the customer shall however not relieve it of its obligation to pay and take delivery of orders placed. Goods may only be returned to HDM NV. after prior written consent.
Clause 13: Technical requirements, etc.If the items to be delivered in Belgium have to be used outside Belgium, HDM NV. shall be responsible for ensuring that the items to be delivered comply with the technical requirements or standards laid down under the laws or regulations of the country in which the items have to be used, provided the fact that the use abroad is notified at the time of concluding the (purchase) agreement. All other technical requirements laid down by the customer for the goods to be delivered, which deviate from the normal requirements, shall also be explicitly notified by the customer at the time of concluding the (purchase) agreement.
Clause 14: Samples, models and specimensIf HDM NV. shows or provides a model, sample or specimen, this shall always only have indicative value: the quality of the goods to be delivered may deviate from the sample, model or specimen.
Clause 15: Copyright, industrial property rights and reproduction rightsUnless expressly agreed otherwise, HDM NV. shall remain the owner of the designs, images, descriptions, drawings, models, budgets, programmes and calculations etc. provided by it or on its behalf, and the same must be returned to HDM NV. at its first request.
All the rights relating to designs, images, descriptions, drawings, models, budgets, programmes, etc. (copyrights, design rights, etc.) are reserved and must be respected.
In case of violation of this clause, the customer shall be liable to pay a contractual, immediately payable penalty of €1,250 per violation to HDM NV. without prejudice to the possibility to recover the actual damages.
Clause 16: Termination of the agreementThe claims of HDM NV. against the customer shall be immediately due and payable in the following cases:
- if after concluding the agreement, HDM NV. becomes aware of circumstances that give it reasonable grounds to fear that the customer will not fulfil its obligations;
- if at the time of concluding the agreement, HDM NV. has demanded security from the customer for the fulfilment thereof, and such security is not provided, or is insufficient.
If circumstances arise in relation to persons and/or material that HDM NV. uses or tends to use in the performance of the agreement, which are of such nature that the performance of the agreement becomes impossible or so onerous and/or disproportionately expensive, that compliance with the agreement can no longer be reasonably demanded, HDM NV. shall have the right to dissolve the agreement.
Clause 17: Right of retentionHDM NV. shall have the right to retain all items provided to it by the customer, or all items that it has manufactured on behalf of the customer, until HDM NV. receives payment of all costs incurred by it for the fulfilment of orders of the aforementioned items, regardless of whether such orders relate to the aforementioned or other items of the customer, except where the customer has provided adequate security for these costs.
Clause 18: Right of retention of titleThe goods delivered by HDM NV. shall remain the property of HDM NV. until the customer has fulfilled all the following obligations under all the (purchase) agreements concluded with HDM NV.:
- the consideration(s) relating to the good(s) delivered or to be delivered,
- the quid pro quo(s) relating to services performed or to be performed by HDM NV. pursuant to the (purchase) agreement(s),
- any claims that arise due to the non-performance of (a) (purchase) agreement(s) by the customer.
If the customer does not fulfil its obligations or if there is a well-founded fear that it will not do so, HDM NV. shall have the right to recover possession or commission the recovery of the possession of goods delivered by it, to which the retention of title mentioned in paragraph 1 applies, either from the customer directly or from third parties who keep the goods on behalf of the customer. The customer shall be bound to cooperate fully in this connection, failing which the customer shall be liable to pay a fine of 10% of the amount payable, for each day of such failure to cooperate.
In case third parties wish to establish or assert any right to the goods delivered under the retention of title, the customer shall be bound to notify HDM NV. of the same as soon as can reasonably be expected.
The customer undertakes to do the following at the first request of HDM NV.:
- insure and keep insured the goods delivered under retention of title against fire, explosion and water damage and against theft, and furthermore, to make such insurance policy available for inspection;
- to mark the goods delivered under retention of title as the property of HDM NV;
- to cooperate in other ways with all reasonable measures that HDM NV. wishes to take in order to protect its right of ownership relating to the items that do not unreasonably impede the customer in the normal course of its business.
Clause 19: Payment - Credit insurerPayment must be made within 30 days after delivery of the goods, through bank transfer into the bank account numbers mentioned on the agreement or in the invoice, in the name of HDM NV. at 3990 Peer. 2% discount may be deducted in case of payment within 8 days. Payments may only be made using other methods after obtaining written confirmation from HDM NV.
If an invoice is not paid by the due date, interest shall be payable on the amount of such invoice at the following rate. 12% as from such date by operation of law without any notice of default.
Except where the customer issues specific instructions concerning how the payments should be applied, we shall apply all payments against our oldest invoice and/or against interest on late payments.
Payments made by the customer will first be applied against outstanding interest on arrears and/or damages, after which they shall be applied against the outstanding invoice balance.
If an invoice is not paid by the due date, all our claims shall become immediately due and payable, and we shall be fully entitled either to suspend the performance of all current agreements, or to regard them as dissolved by operation of law.
In case of liquidation, bankruptcy or suspension of payment of the customer, the customer’s obligations shall be immediately due and payable. All claims of HDM NV. against its customers are insured with credit insurance.
Clause 20: Collection costsIf the invoices are not paid on time, damage compensation of 10% of the amount of the invoice shall be payable by way of irreducible and lump sum compensation. The interest and damage compensation will be applied by operation of law without prior notice of default.
If HDM NV. demonstrates that it has incurred higher costs, which were reasonably necessary, these shall also be eligible for compensation.
Clause 21: Jurisdiction – Applicable lawAll our agreements are subject to Belgian law. The Commercial Court of Hasselt shall have jurisdiction over all disputes or differences of opinion that may arise with regard to the drawing up or application of an agreement.
Clause 22: Modifications to the Terms and ConditionsHDM NV. shall have the right to make changes to these terms and conditions. These amendments shall come into force on the date on which their entry into force is announced. HDM NV. will send the amended terms and conditions to the customer well in time. If the time of entry into force has not been communicated, changes vis-à-vis the customer shall take effect as soon as it has been notified of the change.
Clause 23: Force majeure (non-culpable fault)Force majeure shall be understood to mean circumstances that prevent the fulfilment of the obligation and which cannot be attributed to HDM NV. This shall include (if and insofar as these circumstances make compliance impossible or unreasonably difficult): strikes in businesses other than those of HDM NV.; wildcat strikes or political strikes in HDM NV.; a general lack of necessary raw materials and other goods or services required for the realisation of the agreed performance; unforeseeable delays in suppliers or other third parties on which HDM NV. depends, and general transport problems.
HDM NV. also has the right to invoke force majeure if the circumstance that prevents (further) fulfilment occurs after the expiry of the deadline by which HDM NV. should have fulfilled its commitment.
During force majeure, the delivery and other obligations of HDM NV. are suspended. If the fulfilment of the obligations by HDM NV. is not possible due to force majeure lasting more than 2 months, both parties shall have the right to dissolve the agreement, without any obligation to pay damages in such case.
In case HDM NV. has already partially fulfilled its obligations at the time of the force majeure, or can only partially fulfil its obligations, HDM NV. shall have the right to invoice the already delivered and/or deliverable part separately, and the customer shall be bound to pay this invoice as if it related to a separate contract. However, this shall not apply if the part already delivered or deliverable has no independent value.
Clause 24: LiabilityHDM NV. is exclusively liable towards the customer in the following manner:
- For damage caused due to defects in delivered goods, only the liability as laid down in the guarantee certificate shall apply.
- HDM NV. is only liable if damage was caused wilfully or through gross negligence on the part of HDM NV. or of its managerial employees.
- In any case, the liability of HDM NV. shall be exclusively limited to the invoice value. In case of material or production faults, HDM NV. shall therefore deliver the replacement products in accordance with the guarantee conditions. Additional compensation for installation costs shall be limited to the invoice value, to the exclusion of compensation for any other possible damage and/or costs incurred or to be incurred, such as transport, accommodation and/or removal costs.
- No guarantee shall apply other than as explicitly or implicitly described in the present guarantee stipulations, and HDM NV. shall not be liable for direct or indirect damage and costs incurred due to a defective product if any, and furthermore, HDM NV. shall not under any circumstances be liable for the costs of removal and (re)installation of the products and/or transport and/or transaction costs.