1.1 For the application of these standard terms and conditions, the word “Seller” means: “GUARD INDUSTRIE DISTRIBUTION BV, having its corporate seat located at Roosbloemstraat 26, 9860 Oosterzele (Belgium) with company number “0685.624.110”. For the application of these standard terms and conditions, the word “Buyer” means: every professional Buyer of Products (see definition here after) of the Seller in compliance with the present general terms and conditions.
1.2 These general terms and conditions are applicable to each professional sale and delivery of goods (the “Products”) by the Seller to the Buyer under any agreement between the Seller and the Buyer (“Agreement”). The Agreement comes into being by the transfer of an order confirmation by the Seller to the buyer, after placing the order of the Products with the Seller, regardless in which way (orally, electronically, etc.) or on which place (in the premises of the Seller, at fairs, via internet, etc.) this order of the Products is placed by the Buyer with the Seller. The confirmation of the order is, if possible (fairs, sale in the premises of the Seller, etc.), handed over immediately to the Buyer in a paper version and is in any case also sent, together with these general terms and conditions, via e-mail to the e-mail address given by the buyer to the Seller.
1.3 The Buyer will never be able to invoke any general terms and conditions that are mentioned on documents sent by him, even if these were transferred in the framework of an order and the Seller would not have protested them explicitly after the confirmation of the order, unless after explicit written approval of the Seller. No modification, adaptation or renunciation of one or more of these conditions will be valid, unless explicitly agreed otherwise between parties in writing.
1.4 In case of inconsistencies between the confirmation of the order and these general terms and conditions, these general terms and conditions prevail, unless the confirmation of the order explicitly (i.e. in contravention to any article of the general terms and conditions) deviates from the general terms and conditions.
1.5 The Agreement is concluded immediately after the transfer by Guard Industrie Distribution of the confirmation of the order, to which these general terms and conditions are attached, to the buyer.
- Terms of payment
2.1 Payment should be made within the term that is mentioned on the order confirmation. No goods will be dispatched before full payment is made. If the Seller decides to dispatch the goods before any demand of payment, the payment should be made within 30 days from the invoice date.
The Products will be invoiced immediately as of the date on which the Products leave the premises of the Seller, but the Seller has the right to invoice an advance and in that case delivery will only take place after payment of the advance.
2.2 The Seller reserves the right not to deliver Products as long as any amounts due under any agreement with the Buyer are not (fully) paid, including any interests or fixed indemnities that are still due, as mentioned in article 2.3. resp. 2.4 of these general terms and conditions.
2.3 In case of non-payment or incomplete payment of an invoice, an interest of 12% per year on the amounts that are not paid will automatically and without any notice of default accrue as of the date on which these amounts are payable until the moment of full payment.
2.4 Moreover, in case of non-payment or incomplete payment of the amount(s) due, in addition to the amount(s) due at that moment and apart from the current interest, the client is, automatically and without any notice of default, liable to pay a fixed indemnity amounting to 10 % of the invoice amount, with a minimum of 250 euro per invoice, without prejudice to the right of the Seller to claim an additional indemnity if he proves a greater damage.
2.5 Every invoice is payable at the seat of the Seller.
2.6 The Buyer does not in any case have the right to compensate any amounts that are (allegedly) due by the Seller to the Buyer with any amounts that are (allegedly) due by the Buyer to the Seller.
- Delivery of Products
3.1 The delivery schedule for Products set up by the Seller, as mentioned hereafter, is only approximate and a delivery after the estimated date of delivery cannot give rise to the cancellation of the Agreement.
3.2 After or together with the confirmation of the order, in compliance with article 1.2 of the general terms and conditions, the Buyer will receive an offer of the Seller in which an indicative date of delivery of the Products is communicated to the Buyer.
3.3 The Buyer will immediately inspect the Products upon delivery and will inform the Seller in writing within 7 days after delivery of all visible flaws and will provide the Seller with the evidence of these flaws, after which the Seller will examine the evidence of the Buyer in accordance with his internal procedure and will inform the Buyer immediately of the further follow up-procedure. If the Seller recognizes the flaw, he has the choice between delivering a replacing product or sending out a credit note. Any visible flaws that are not reported to the Seller within the term mentioned above, are deemed to be accepted by the Buyer.
3.4 If any amount due by the Buyer with respect to the concerned or other confirmations of orders is not fully paid, the Seller has the right to suspend the delivery of the Products until the full payment of all amounts due. The Seller also has the right to suspend the delivery of the Products if the Seller for some reason doubts the creditworthiness of the Buyer and/or if the Buyer is reasonably not creditworthy (enough), taking into account the order placed by him as mentioned in the confirmation of the order.
- Annulment of the order
4.1 Notwithstanding the application of these general terms and conditions, in particular article 4.2 of the conditions, the buyer has the right to annul his order before the delivery of the Products. Such annulment should be made in writing; the date of receipt of the annulment by the Seller is determining for the financial arrangement set forth hereafter.
4.2 If the Buyer (partly) annuls his order within 14 calendar days after the date of sending the confirmation of the order via e-mail, he is liable to pay an amount of 30% of the price to be paid (including VAT). If the Buyer (partly) annuls his order in the period starting from 14 calendar days after the date of the confirmation of the order via e-mail, he is liable to pay an amount of 50 % of the price to be paid (including VAT). An annulment is no longer possible after shipment of the Products.
5.1 All risks, of any kind, shall be incurred by the Buyer as of the moment when the Products leave the premises of the Seller.
5.2 If the Products cannot leave the premises of the Seller due to any cause attributable to the Buyer, the risk will be passed to the Buyer on the planned date of leaving warehouse as was communicated to the Buyer.
6.1 The Products remain the property of the Seller until the price is fully paid. If the Buyer is for some reason liable to pay any other interests and/or fixed indemnities to the Seller, the property of the Products will be passed as soon as these interests and/or fixed indemnities are fully paid by the Buyer.
6.2 In case of non-payment, the Buyer will immediately return the Products to the Seller in good condition at the first request of the Seller. In that case, the Seller also reserves the right to immediately take possession of the Products on which he, as mentioned in 6.1, reserved the property and to sell these Products again afterwards. In view of this, the Buyer grants the irrevocable right to the employees, appointees and agents of the Seller to enter his premises and grounds. This right will remain valid until the termination of the Agreement, for any reason, and does not affect any rights acquired by the Seller under the current general terms and conditions or in any other way.
7.1 The Seller is not liable for flaws in the Products caused by normal wear and tear, abnormal or inappropriate conditions of storage or -use or any act, omission or fault of the Buyer or any third party.
7.2 The total liability of the Seller towards the Buyer is in any case limited to the price (excluding VAT) of the Products that gave rise to the damage, as invoiced to the Buyer. This limitation of liability applies regardless of whether the act or omission committed by the Seller or an appointee of the Seller, regardless of the applicable liability regime including but not limited to, contractual liability, aquiline liability, strict liability, product liability, liability for latent flaws and even in case of gross negligence of the Seller and moreover also in case of serious and wilful misconduct of his appointees.
7.3 The Seller is not liable for differences in colour, form, weight of the Products in comparison with the description given thereof by the Seller, such as in his leaflets, on the Internet, at fairs etc. Apart from that, the Seller is not liable for defects in the structure or materials of the Products.
- Force majeure
The Seller cannot be held liable towards the Buyer for any loss or damage that would be suffered by the Buyer and that is directly or indirectly the consequence of the fact that the performance of the Agreement is hindered, hampered, delayed, withdrawn, or made economically unrewarding due to circumstances or causes beyond the reasonable control of the Seller including, but not limited to, strikes, lock-out, labour disputes, breakdown of units or machinery, flood, storm, difficulties or increased costs to obtain workmen, materials or transportation, strikes or delays with the supplier of the Seller or refusal to supply by the supplier of the Seller.
9.1 The Seller has the right to immediately and automatically end the Agreement by registered letter, if the Buyer fails to comply with one or more essential obligations of the Agreement, these general terms and conditions or if any of the amounts due by the Buyer with respect to these or earlier orders with the Seller are not fully paid, and this without prejudice to any other rights of Seller, including his right to claim an indemnity.
9.2 The Seller has the right to immediately end the Agreement or claim full payment in advance or other guaranties of the buyer before delivery, in case the Buyer is the object of bankruptcy, suspension of payments, goes into liquidation or enters into judicial or extra-judicial settlements with creditors.
- Final provisions
10.1 No omission or negligence of either party to enforce or comply with the terms or conditions of the Agreement, constitutes a renunciation of such terms or conditions.
10.2 The Agreement is exclusively governed by and interpreted in accordance with Belgian law. Only the courts of the district of the seat of the Seller are competent to judge any dispute with respect to the Agreement.
10.3 If any provision of the Agreement or part of such a provision is declared invalid, this will not affect the remaining provisions of the Agreement or the remaining part of the provision. Both parties will in such a case replace the provision(s), or parts thereof, that were declared invalid, by new provision(s) that relate(s) as closely as possible to the original intention of the parties and of the Agreement.
10.4 The data and personal details that are communicated by the Buyer to the Seller, including the e-mail address of the buyer, are entered into a database, that is used by the Seller for administrative purposes, or by third parties the Seller calls upon for these purposes, as well as for informing the Buyer about current of future services, products, promotions etc. of the Seller. The personal details of the Buyer (including those of contacts of the Buyer) are processed by “GUARD INDUSTRIE DISTRIBUTION BV, having its corporate seat located at Roosbloemstraat 26, 9860 Oosterzele (Belgium) as person responsible for the processing. The Buyer natural person has the right to oppose, free of charge, to the use of his personal details for direct marketing by communicating this to the Seller via ordinary mail or e-mail. The Buyer natural person has a right to accede to and correct his personal data. If he wishes to execute these rights, he should send a request in this sense to the Seller.
10.5 The execution and/or acceptance of a note or other merchantable documents does not constitute any novation and does not constitute any deviation of these general terms and conditions.