General terms and conditions of sale – Hermans Verenfabriek
Valid from: 25/04/2023
Hermans Verenfabriek PLC
Lange Weversstraat 53C, 9280 Lebbeke, Belgium
Company number: 0415.711.415
RPR Ghent - Dendermonde Division
1. Acceptance of the General Terms and Conditions. These General Terms and Conditions of Sale (the “GTC”) govern the legal relationship between Hermans Verenfabriek BV (identified above and hereinafter referred to as “Hermans Verenfabriek”) and any legal entity or natural person ordering and purchasing Products (as defined below) from Hermans Verenfabriek for professional purposes (the “Client”).
1.1. The Client acknowledges that it has had the opportunity to read these GTC before placing an order, whether they are attached to a contractual document, delivered in person at the shop or the Client has been invited to read these GTC on the website www.hermans-veren.com (the “Website”).
1.2. The GTC apply to all orders at Hermans Verenfabriek. Hermans Verenfabriek invites the Client to read these Client carefully before placing an order. By placing an order with Hermans Verenfabriek for Products, the Client (i) accepts these GTC and (ii) acknowledges that they form an integral part of the Agreement (as defined below). Conflicting or differing terms and conditions adopted by the Client or other reservations by the Client shall be deemed not to have been accepted unless expressly accepted in writing by Hermans Verenfabriek.
1.3. In case of conflict between the provisions of an expressly accepted order and those of the current GTC, the provisions of the GTC shall prevail.
1.4. The drawing and/or acceptance of bills of exchange or other negotiable documents does not constitute novation and does not constitute a derogation from these GTC.
1.5. Hermans Verenfabriek expressly reserves the right to amend current GTC. Each Agreement is subject to the GTC in force at the time of its conclusion between Hermans Verenfabriek and the Client. Therefore, the Client is invited to regularly consult the GTC to remain informed of the latest developments.
2. Products. Hermans Verenfabriek is a spring manufacturer offering various categories of springs for sale on the Website (compression springs, tension springs, garage springs, torsion springs, die springs, etc.), standard or customised (the “Products”).
3. Order and Agreement.
3.1. Each order of Products give rise to
(i) an agreement (a) based on an order placed by the Client on the Website, (b) that has been accepted and confirmed by Hermans Verenfabriek by email to the address provided by the Client in the online order form (the “Agreement”); and
(ii) payment when ordering.
3.2. Photographs, catalogues, or other advertising documents supplied by Hermans Verenfabriek have no contractual value whatsoever.
3.3. The Client acknowledges, if it places an order of Products, that it has been sufficiently and correctly informed by Hermans Verenfabriek regarding all important elements of the Products and that it has good knowledge of them.
3.4. Without being liable for any compensation, Hermans Verenfabriek may consider that the delivery cannot take place due to poor or inadequate information by the Client and/or any other default by the Client. In that case, the Products will still be charged to and reimbursed by the Client.
4. Prices and payment terms.
4.1. Prices are net prices and are in Euro (EUR). Prices do not include (i) the tax charges payable by the Client and (ii) any delivery costs. In the event of a delivery to be carried out by Hermans Verenfabriek, the associated costs will be communicated to the Client in advance.
4.2. All prices are under reservation of printing and typing errors. No liability is accepted for the consequences thereof. In the event of printing and typing errors, Hermans Verenfabriek is not obliged to supply the Product according to the incorrect price.
4.3. Hermans Verenfabriek reserves the right to adjust the prices of the Products offered, which may always vary, based on objective reasons. When the Client places an order, the price applicable to the latter corresponds to the price in force at the time of the said order.
4.4. All invoices are payable at Lebbeke, Belgium, in Euro. The exchange rate risk is borne by the Client. Unless otherwise agreed in writing by Hermans Verenfabriek and the Client, a payment term of 30 calendar days after the invoice date applies.
4.5. In the event of late payment, the Client shall automatically and without notice be liable to pay (i) default interest calculated on the basis of the Belgian legal interest rate plus 2%, with a minimum interest rate of 10% on an annual basis and (ii) compensation of 10% of the invoice amount with a minimum of 100 EUR. Without prejudice to Article 7.7 the above compensation is also applicable in the event of a contractual breach by Hermans Verenfabriek.
The non-payment on the due date of one invoice, makes the due balance of all other invoices, even those not due, immediately payable.
4.6. All invoices are deemed accepted if they are not disputed by the Client by registered letter within 7 calendar days of the invoice date. Under no circumstances can payments be suspended or compensated in any way without the written and prior consent of Hermans Verenfabriek.
5.1. Delivery times are indicative, although Hermans Verenfabriek takes the necessary measures to meet delivery times. Delays can never give rise to termination of the Agreement nor to damage claims. Complaints do not entitle the Client to delay payment, or to reduce the amount of the invoice.
5.2. The Client acknowledges that 10% deviation from the quantity ordered is allowed, as in many cases this cannot be avoided.
5.3. In the event of Force Majeure or an occurrence that reasonably prevents Hermans Verenfabriek from fulfilling its commitments and which is not attributable to it, Hermans Verenfabriek reserves the right, respectively, to extend the delivery/execution period or to terminate the Agreement with immediate effect, by operation of law and without prior judicial intervention, by means of registered notification to the Client, without being liable for compensation. Under “Force Majeure” is understood any situation/event beyond the reasonable control of Hermans Verenfabriek, such as fire, flooding, bad weather conditions, war, riot, strike, blockade, forced closure of the company, illness, accidents, a problem in the internal organisation of the company, import or export prohibition, transport difficulties, delayed supply/lack of supply from suppliers, and all this both at Hermans Verenfabriek and at the suppliers or subcontractors or other third parties involved, as well as non-performance by the aforementioned third parties.
6. Transfer of risk and retention of title.
6.1. Once the Products are delivered or, as the case may be, as from the notification to the Client that it can collect them, the Client bears all risks, including but not limited to the risks of loss, theft, destruction and damage. Storage of the Products pending collection by the Client is therefore at the Client’s risk.
6.2. Without prejudice to Article 6.1, and until full payment by the Client of all amounts due by the latter under the Agreement, the Products remain the property of Hermans Verenfabriek, even if the Products have already been processed or treated, and in the event of non-payment or incomplete payment, the unpaid Products can be recalled at any time without the consent of the Client. In case of resale before payment, the paid advances remain acquired to compensate Hermans Verenfabriek for possible losses.
6.3. If the Client resells the Products belonging to Hermans Verenfabriek, self-processed, it transfers to Hermans Verenfabriek from now on all claims arising from this resale.
6.4. In any case, tools remain the property of Hermans Verenfabriek.
7. Warranty and liability.
7.1. The Client must immediately check the Products for conformity upon delivery and must notify Hermans Verenfabriek by registered mail at the latest within 5 working days after delivery (the “Complaint”). Return of the Products concerned must be in the original packaging and in new condition. Complaints that do not comply with this condition will not be accepted.
7.2. The failure of the Client to communicate a Complaint to Hermans Verenfabriek within the aforementioned period shall be considered as an unconditional acceptance of the Products delivered. The expiration of this period is therefore equal to the sole and final acceptance.
7.3. A response by Hermans Verenfabriek to a late Complaint is always under reservation of all rights and without any prejudice. The payment or commissioning of the delivered Products, and this even in the event that the Client submits a Complaint in accordance with Article 7.1 shall also constitute unconditional acceptance of the Products.
7.4. To the extent necessary, it is expressly provided that submitting a Complaint or refusing or returning ordered Products does not suspend the Client’s obligation to pay the invoice.
7.5. Hermans Verenfabriek guarantees the hidden defects in the Products supplied by it that manifest themselves for 6 months from the provisional delivery, if this was foreseen, or at the final delivery as stipulated in Article 7.2, provided that the Client, under penalty of inadmissibility, reports the defect in writing within 15 days of its discovery and refrains from manipulating (or allowing the manipulation of) the Products to which the defect relates after it has manifested itself.
7.6. If a Complaint is found grounded by Hermans Verenfabriek, it will, without being obliged to pay any further compensation, repair or replace the Products. The costs of shipping, disassembly, assembly, etc. are for the account of the Client. The returned Products become the property of Hermans Verenfabriek. Replacement of defective parts does not trigger a new warranty period.
7.7. If the liability of Hermans Verenfabriek is engaged – whether this concerns its pre-contractual, extra-contractual or contractual liability – this will in any case be limited to covering direct damage, with a maximum of the total sums (excluding VAT) invoiced by Hermans Verenfabriek for the Products for which the aforementioned liability was retained. Liability for any form of indirect damage, such as purely financial damage, loss of profit, loss of clients, loss of working hours in relation to Products for which the liability of Hermans Verenfabriek is retained, damage further to claims by third parties, damage further disrupted planning, etc. is excluded.
7.8. Notwithstanding the other provisions of the Agreement, Hermans Verenfabriek cannot be held liable, nor does any guarantee provide cover for damage resulting from: (i) any handling, adaptation and/or use of the delivered Products, imposed by the Client despite the written and justified reservation of Hermans Verenfabriek and/or made with elements not supplied by Hermans Verenfabriek and/or made by others than Hermans Verenfabriek, including by the Client itself; (ii) repair or transformation carried out by a person not authorised for this purpose by Hermans Verenfabriek; (iii) operation, use or maintenance not in accordance with the instructions; (iv) damage to pieces subject to natural wear and tear; and/or (v) force majeure, abnormal or incorrect use, irregular maintenance, fault of the Client or a third party, wear and tear or external influences, etc.
7.9. The provisions of the United Nations Convention on Contracts for the International Sale of Goods 1980, also known as the Vienna Sales Convention, shall, to the extent that it does not derogate from these GTC, apply to any sale referred to in these GTC, further specified in Article 2.
8. Termination of the Agreement.
8.1. Without prejudice to Hermans Verenfabriek’s other rights under the Agreement and applicable law, Hermans Verenfabriek reserves the right to suspend all deliveries, without prior notice, as well as to terminate the Agreement with immediate effect, by operation of law and without prior judicial intervention or prior notice in respect of the part not yet performed, in the following cases:
(i) the Client commits a serious breach of the Agreement and fails to remedy such breach within 14 days of the written demand sent by Hermans Verenfabriek by registered mail;
(ii) in case of non-payment by the Client of an invoice on the due date;
(iii) as well as in case of bankruptcy, partial or total cessation of activity, liquidation or insolvency of the Client or in case of any change in the legal status of the Client and death of the Client.
8.2. Without limiting the generality of Article 8.1, Hermans Verenfabriek reserves the right to suspend all or part of the order and to demand appropriate guarantees from the Client, even if the Products have already been dispatched in whole or in part, if confidence in the creditworthiness of the Client, and thus in the proper fulfilment of its obligations, is shaken by acts of judicial execution against the Client and/or other demonstrable events. If the Client refuses to comply, Hermans Verenfabriek reserves the right to cancel all or part of the order.
9. Severability. In the event that any provision of the current GTC should be found invalid, illegal or unenforceable by any court or competent authority in any jurisdiction, such provision shall be deemed not to form part of the current GTC. This will not affect the validity, legality and applicability of this provision in other jurisdictions.
10. Competent jurisdiction and applicable law. The current GTC and the Agreement are governed by Belgian law. Any dispute relating to the conclusion, validity, interpretation or execution of the current GTC and/or the Agreement or subsequent acts that may arise therefrom, as well as any other dispute relating to, or in connection with, the current GTC, the Agreement and/or the Products shall fall within the exclusive jurisdiction of the Court foe enterprises in Ghent – Dendermonde Division.