1. Scope of the general terms and conditions of sale and distribution
a. These terms and conditions contain and govern the entire agreement between the client and BVBA DE SUTTER, with registered office at 1910 Kampenhout, Vekestraat 48, registered in the register of companies RPR Leuven with company number 0417.444.349 (hereinafter referred to as “DE SUTTER”), except in case of prior and written deviations. Deviations from one of the provisions of these general terms and conditions does not affect the other terms and conditions, which remain fully applicable. Any deviation from one of the provisions of these general terms and conditions shall apply to only one assignment, unless agreed otherwise.
b. Any reference by the client to his own general terms and conditions is hereby considered non-existent. Other terms and conditions shall only be valid if and insofar as DE SUTTER has accepted them in advance and in writing.
c. If one or more provisions of these terms and conditions should be null and void, such nullity shall have no effect whatsoever on the validity of the other provisions. The provision(s) that have no effect shall be replaced by others that have the same commercial effect.
2. Quotation, agreement, prices and conditions of sale
a. DE SUTTER’s offers are valid for 30 days.
b. The contract with DE SUTTER shall become effective only after DE SUTTER has confirmed the order in writing and the parties have entered into a contract.
c. Unless the client is a consumer, DE SUTTER shall be entitled to adjust its prices by means of and immediately after written notice if the cost to DE SUTTER increases in the period between the placing of the order and the execution of the agreement. In this case, the client has the right to cancel his order in writing within eight days after receipt of this written notification.
d. All current and future taxes and other costs, levies and/or charges, of whatever nature, shall be borne by the client.
e. All deliveries of works and/or products not explicitly provided for in the offer and/or agreement are deemed to be additional works at the request of the client, and will be charged as such to the client.
f. The number of running metres stated on the quotation is only a rough estimate. DE SUTTER has the right to charge the actual number of metres used for materials and not the metres theoretically counted in the quotation.
g. Installation prices are determined on the basis of normal soil conditions, i.e. there are neither stones nor roots in the soil. DE SUTTER has the right to charge a surcharge if the soil conditions are not normal.
h. Discounts apply, unless otherwise agreed, for only one assignment.
i. The prices are exclusive of VAT and are expressed in euros.
3. Deliveries and terms
a. The goods, materials and supplies shall be delivered free of charge by DE SUTTER, except in the case of delivery without installation by DE SUTTER for an amount of less than EUR 1,950.00 (ex. VAT). In that case, EUR 145.00 (ex. VAT) transport costs will be charged.
b. Nonetheless, it will be the client’s responsibility to unload the truck(s).The client is deemed to have a forklift truck to unload the truck(s) at his own expense and risk. This only applies if De Sutter Naturally is not in charge of installing the goods.
c. All goods are insured during transport under CMR conditions.
d. The client must ensure that the work can start immediately. Failing this, the direct and indirect costs resulting from the loss of time will be charged to the client, without prior notice of default.
e. The client shall provide electricity and water at the site free of charge. The client shall ensure the careful storage of the goods, materials and supplies delivered to the site and the security thereof.
f. Dates and periods given by DE SUTTER are only indicative, which implies that the client and DE SUTTER have not agreed on a delivery period. Delays in the works cannot give rise to a claim for damages, nor to the suspension of the client’s payment obligations.
g. DE SUTTER shall under no circumstances be held liable for delays or cancellations of the works caused by force majeure or a foreign cause. Force majeure is understood to be, for example (non-exhaustively): strike, war, lock-out, riot, mobilisation, epidemic, illness, fire, government measures in general, late delivery by a supplier, strike at a supplier, bankruptcy of a supplier, shortage of manpower, fuel shortage, destruction of machinery, weather conditions, etc.. Neither will DE SUTTER accept responsibility for delays resulting from acts or omissions by the client.
h. DE SUTTER may cancel an offer and propose a new offer with an increased price if the purchase price/market price of timber has risen due to external factors.
i. The client may declare the agreement terminated if the delay exceeds three (3) months, except when the delay is due to force majeure and to the extent that the client has given prior notice of default to DE SUTTER, whereby the client shall allow DE SUTTER a reasonable additional period of time. In this case, however, the client shall not be entitled to claim any damages of any kind whatsoever, whether direct or indirect. If the client is a consumer, the client may dissolve the agreement, subject to compliance with the same conditions as stated above, if the delay exceeds three (3) months and this also in the case of force majeure.
j. DE SUTTER may execute partial deliveries/works and the client shall be obliged to accept and pay for these partial deliveries/works.
4. Acceptance of works - complaints
a. The client undertakes to receive the goods/the works immediately and to examine whether the quality corresponds to what has been agreed.
b. Any visible defects must be reported in writing by the client to DE SUTTER within 8 calendar days after delivery/ completion of the work, in which case the client must provide a detailed description of the defects. If the client is a consumer, a period of one month after the delivery/completion of the works is allowed to report the visible defects in writing. If the complaint regarding visible defects is well-founded and the client is not a consumer, the client shall only be entitled to a price reduction.
c. In all cases an unconditional payment of the statements of receivables, advances, invoices or other cost statements shall be understood to be a definitive and irrevocable acceptance of the works.
d. In order to be valid, any complaint regarding advance payments, payments and invoices must be made by registered letter to the registered office of DE SUTTER, within eight calendar days from the date of dispatch of the invoice, bill or cost statement. The invoice date shall irrefutably be deemed to be the date of dispatch of the invoice.
e. Hidden defects must be reported in writing no later than fourteen (14) calendar days after their discovery, and the client undertakes to bring any legal action for hidden defects within three (3) months of their discovery, both on pain of forfeiture of recourse. If the client is a consumer, he or she has two (2) months after discovery to report a hidden defect to DE SUTTER in writing and he or she must bring an action for hidden defects within one (1) year from the day on which he or she discovered the defect, both under penalty of forfeiture of recourse. If the complaint for hidden defects is well-founded and the client is not a consumer, the client is only entitled to a price reduction.
a. Unless stated otherwise and without prejudice to the legal provisions of public order or mandatory law, DE SUTTER cannot be held liable for: accidental damage or damage resulting from force majeure or weather conditions; damage caused by inappropriate and/or injudicious use and/or lack of maintenance; damage caused by a fault or negligence on the part of DE SUTTER or one of its own appointees, employees or agents; indirect damage on the part of the client or third parties, such as (but not limited to) trading loss, consequential damage, loss due to delay, loss of profits, damage resulting from infringement of the rights of third parties.
b. DE SUTTER shall however be liable for its wilful misconduct, its gross negligence, its gross error or that of its employees or agents.
c. DE SUTTER shall not be liable for damage to third parties and shall not be bound to indemnify the client against any damages, even in case of gross negligence.
d. DE SUTTER shall not be liable for any damage caused to pipelines or other, situated on or around the place where the fence is to be erected.
e. The client acknowledges that wood is a natural product. Consequently, the differences in colour and structure, as well as the bending and cracking of the wood - which are natural characteristics - cannot give rise to any liability on the part of DE SUTTER.
f. Any compensation to which DE SUTTER may be liable on the basis of this agreement is limited to 10% of the price.
6. Commercial guarantees
a. In addition to the legal warranties, the following commercial warranties apply to the goods and materials supplied and installed by DE SUTTER.
b. The goods and materials delivered and installed by DE SUTTER have an expected life span of 20 years. There is an anti-rot guarantee on the delivered and placed materials by DE SUTTER, during the first 10 years at 100%. During the following five years a degressive guarantee value applies, whereby the guarantee value decreases by 20% per year. This degressive guarantee is limited to the material only.
c. In case of delivery and installation by DE SUTTER of Tropical hardwood, durability class 1, an expected life span of 30 years and an anti-rot guarantee on the delivered and installed material by DE SUTTER apply, during the first 15 years at 100%. During the following five years a degressive guarantee value applies, whereby the guarantee value decreases by 20% per year. This degressive guarantee is limited to the material only.
d. The percentage guarantee value is applied to gross sales and delivery prices (ex. VAT).
e. Previous guarantees can only be applied after presentation of the purchase invoice.
f. The above guarantees shall not apply in the event of: incorrect use of the goods; in the event of lack of maintenance; in the event of damage caused by force majeure (e.g. storm damage); in the event of intentional damage caused by the client or his employees.
g. The guarantee provided by us shall lapse if the client offers the goods to be repaired by a third party first or has the goods repaired without the prior written consent of DE SUTTER.
h. These guarantee provisions also apply to Premium Partners and distributors abroad.
7. Transfer of risk and ownership
a. All goods, materials and supplies, as well as the executed works remain the property of DE SUTTER until full payment of the invoices in principal amount and any supplements and/or interests. This shall also apply if the works, supplies, goods or materials of DE SUTTER are only part (accessory) of a larger whole (principal), when the ownership or parts thereof would not belong to DE SUTTER.
b. However, the risk shall pass to the client as soon as the goods, materials and supplies have been delivered to the client. As soon as DE SUTTER has carried out (part of) a work or has delivered (part of) the material, the client is responsible for all damage to the goods, materials and supplies placed/delivered, unless the client can prove that the damage already existed at the time of placement/delivery by DE SUTTER and the client has notified DE SUTTER of this in writing within 8 calendar days after placement/delivery.
c. The client must ensure that the site is adequately insured before the start of the work.
d. The client shall be liable vis-à-vis DE SUTTER for any damage-causing fact occurred on the site to DE SUTTER’s goods, appointees or subcontractors and their materials, both as a result of own fault (even the slightest) and faults of the persons he is responsible for or those of third parties whom he has admitted or tolerated on the site of the works. The client shall fully safeguard DE SUTTER against claims by third parties.
8. Netting and other rights of DE SUTTER
a. As soon as and for as long as one or more amounts due to DE SUTTER, of whatever nature and for whatever cause, have not been paid in time and in full (principal sum, any interest, compensation clause and any legal costs) by the client:
• all amounts due to DE SUTTER shall become due and payable at once, without notice of default being required;
• DE SUTTER shall be entitled, even after concurrence, to invoke set-off between amounts that the parties would owe to each other, for whatever reason and on whatever grounds, and this for the smallest amount;
• the client is forbidden to pledge the goods, whether or not in the context of a pledge on his business premises, or to encumber them in any other way;
• the client hereby assigns to DE SUTTER all claims he has against third parties as security for the payment of his invoices;
• the client shall immediately inform DE SUTTER by registered letter of all acts of execution by one or more creditors of the client vis-à-vis the client with respect to the unpaid works, under penalty of damages of EUR 1,000, without prejudice to higher damages;
• DE SUTTER shall be entitled, without notifying the client, to suspend the works of any other assignment, even if these works form part of another agreement;
• upon expiry of the due date and without prejudice to DE SUTTER’s right to claim payment of the invoices, DE SUTTER shall be entitled to terminate the contract by simple registered letter. In the event of dissolution of the agreement due to the client, the latter shall owe a fixed and irreducible compensation of 10% of the agreed price, without prejudice to higher compensation if there is reason to claim this (e.g. for transport costs, storage and related costs or for custom-made materials, parts or goods: these costs must be paid 100% by the client).
a. Unless otherwise stipulated, DE SUTTER’s invoices are payable in cash or in advance by bank transfer at DE SUTTER’s registered office.
b. DE SUTTER shall be entitled to first charge the client for the oldest outstanding debts (including interest and costs), regardless of whether the client wishes to cover other outstanding debts with this payment. In addition, DE SUTTER is entitled to first charge the client for interests, conventional damages and any other compensation that the client owes DE SUTTER on the basis of other outstanding debts.
c. In the event of non-payment of one or more invoices on the due date, the client shall automatically and without notice of default:
- owe a late payment interest of 10% from the due date, calculated from day to day;
- owe a lump sum penalty of 10% of the invoiced price, with a minimum of EUR 75; this penalty does not cover the costs associated with the debt collection itself;
d. Set-off by the client is excluded, unless the client is a consumer. Nor can the client exercise any right of retention on the unpaid goods/works.
10. Right of withdrawal
a. The provisions of this article only apply to clients who, in their capacity of consumers, enter into a distance contract, whereby only one or more means of remote communication within the meaning of Article I.8, 15° of the Economic Law Code is used.
b. The client has the right to revoke the agreement within fourteen calendar days counting from the conclusion of the agreement, without giving a reason and without payment of a penalty. If the term expires on a Saturday, Sunday or public holiday, the term shall be extended to the next working day.
c. The client may exercise the right of withdrawal by informing DE SUTTER of its decision to revoke the contract by means of an unequivocal statement (e.g. in writing by post, fax or e-mail). The client shall send this statement to DE SUTTER’s place of business and for this purpose may use the model withdrawal form, which shall be appended to these general terms and conditions. Use of this model is not mandatory.
11. Applicable law and competent court
a. The contract between DE SUTTER and the client is governed by Belgian law, excluding the 1980 Vienna Sales Convention.
b. The place of performance of the agreement between DE SUTTER and the client is at DE SUTTER’s registered office.
c. Any dispute relating to the validity, conclusion, interpretation, performance or termination of the agreement between DE SUTTER and the client shall fall within the exclusive jurisdiction of the Belgian Courts and more specifically the Courts of the registered office of DE SUTTER.
APPENDIX: WITHDRAWAL TEMPLATE
(Complete and return this form only if you wish to revoke the agreement)
BVBA DE SUTTER, with registered office in 1910 Kampenhout, Vekestraat 48, registered in RPR Leuven with company number 0417.444.349
Tel: +32 (0)16 72 12 00
Fax: +32 (0)16 72 12 01
— I/We (*) hereby give notice that I/We (*) withdraw from my/our (*) contract of sale of the following goods (*)/provision of the following service (*)
— Ordered on
— Received on
— Name / Customer(s) name
— Customer(s) address
— Customer(s) signature
(*) delete as appropriate