Article 1 – Scope of application of the general terms and conditions
1. The present general terms and conditions apply to the whole of the business relations between PARTEK BV. and its customers from the trade, hereinafter referred to as ‘the Customers’ or as ‘the Customer’. In the event where PARTEK. on an exceptional basis should be made to engage in precontractual and/or contractual relations with one or several consumer(s) within the meaning of the Act dated 6 April 2010 on market practices and consumer protection, derogations shall be made to the present general terms and conditions in order to ensure the effective protection of the consumer as provided for under said Act.
2. The orders submitted to PARTEK. and the assignments handled by PARTEK. shall be exclusively governed by the present general terms and conditions, the application of which shall see all and any clauses specified in or on all or any Customer documents regardless of nature excluded insofar as said clauses should be contrary or add to the present general terms and conditions without the express and written consent of PARTEK.
3. The customers and PARTEK. hereby mutually recognize one another’s capacity as professionals who have the relevant expertise in the area of the products, materials and services sold.
Article 2 – Orders
All orders must be submitted in writing. The sale shall be established only upon the acceptance of the order by PARTEK. On no account may such acceptance be presumed.
Article 3 – Prices and preferential terms
Any preferential terms that may be awarded by PARTEK.’s technical sales representatives to the company’s Customers to be confirmed in writing. In case there is dispute over preferential terms, only the offers confirmed in writing by PARTEK. shall be accepted in evidence.
Article 4 – Costs
The prices are including delivery and include freight, customs duty, ancillary import charges and packaging plus the respectively prevailing value added tax, in so far as nothing else has been agreed upon. Partek is not bound to previous prices in the case of new orders (= follow-up orders).
Article 5 – Payment
1. Bar any clauses to the contrary set forth in the contract or under the present general terms and conditions of sale, all invoices raised by PARTEK. shall be payable in euro, in cash, without discount, at the registered office of PARTEK. In no event are any intermediaries, representatives or subcontractors of PARTEK.’s authorised to accept payments from Customers and/or to issue a valid receipt thereof.
2. However, a 2% discount may be applied, pursuant to specific terms and conditions, for advanced payments. This discount rate is specified on the invoice. In case a discount is deducted, only the VAT corresponding to the price effectively paid shall entitle the payer to said deduction.
3. In case of export sales, the goods must be paid to irrevocable effect prior to shipping by letter of credit and confirmed by a leading bank operating in Belgium.
4. By operation of law and without prior notice of default, total of partial default of payment of any invoice upon the maturity date shall occasion:
– a moratory interest at the rate of 12% per annum;
– said 12% per annum interest rate shall be substituted by the interest rate as provided for under article 5 of the Act dated 2 August 2002 on the fight against payment arrears in commercial transactions, in the event the latter should prove higher;
– a flat-rate sum in compensation to the amount of 10% of the balance left unpaid with a minimum of 250 €
– a sum in compensation of the recovery expenses incurred in compliance with article 6 of the Act dated 2 August 2002 on the fight against payment arrears in commercial transactions.
5. By derogation from member 4 of the present article, in cases where the Customer is operating in a capacity as a consumer within the meaning of the Act dated 6 April 2010 on market practices and consumer protection, by operation of law and without prior notice of default total or partial default of payment of any invoice upon the maturity date shall occasion:
– a moratory interest at the rate of 12% per annum;
– a flat-rate sum in compensation to the amount of 10% of the balance left unpaid.
6. All disputes relating to invoices must be duly reasoned and sent in to PARTEK. within 7 calendar days from the date of the invoice by letter sent by recorded delivery. Beyond this time limit, no protests shall be admissible.
Article 6 – Delivery times
1. All delivery times as communicated to Customers are indicative. Delays in regards to the indicative delivery time shall not occasion the cancellation of the sale.
2. However, if the delay in delivery exceeds 30 calendar days, the Customer shall be within his rights to unilaterally terminate the sales agreement upon the expiry of a 15-calendar day time period following receipt of the notice of default he is to have addressed to PARTEK. by registered delivery and provided the latter has failed to make the delivery within this 15-calendar day time span.
Article 7 – Reservation of title of ownership – Transfer of risk
1. The title of ownership over the goods delivered shall continue to rest with PARTEK. until payment of the principal sum, costs, interests and any sums in compensation relating thereto has been paid in full. In default of payment of the sums owed, PARTEK. shall be within its rights to take back the goods sold at the Customer’s expense.
2. Until he has remitted payment in full of the invoice amount, the Customer shall not be within his rights to either resell, pledge or assign the goods to any kind of surety without het prior and written consent of PARTEK. The Customer undertakes to notify PARTEK. of any seizure by a third party of the products delivered the price of which has not been paid in full. Similarly, the Customer undertakes to notify PARTEK. if the goods should be stored in a location rented by the Customer or a third party and to provide PARTEK. with full contact details of the landlord thereof.
3. The risks shall be transferred to the Customer as soon as the goods sold have been placed at his disposal, or the disposal of his designees or the disposal of the carrier.
Article 8 – Transport – Goods reception and complaints
1. The transport of the goods shall be at the risk of Customer/consignee.
2. In case of dispute over the delivery made by the carrier, it is incumbent on the consignee, on pain of inadmissibility of his complaint addressed to PARTEK.:
– to record the problem found on the carrier’s delivery receipt note (for example: wet parcels, broken parcels, missing parcels, etc). In no event shall the Customer be permitted to express reservations on the basis of assumptions with the goods effectively remaining to be unpacked (for example, by recording the phrase ‘under reservation of unpacking’);
– to confirm to the carrier – not to PARTEK. – within three working days following delivery, the reservations expressed on the delivery note, by letter sent by recorded delivery with acknowledgement of receipt, a copy of which is to be sent to PARTEK. ;
– to transmit the original of the delivery receipt note, as well as the copy of the letter sent by recorded delivery addressed to the carrier, to PARTEK. as soon as possible.
3. If the Customer fails to scrupulously abide by all of the formalities outlined above, the complaint addressed to PARTEK. shall not be considered.
4. It is incumbent on the Customer to inspect the products delivered immediately at the time of delivery in order to verify their conformity with the products intended under the sales agreement and any visible flaws. The Customer is to report any flaws or defects found to PARTEK. within three working days (seven working days if the Customer is a Customer/consumer within the meaning of the Act dated 6 April 2010) following the date of goods reception and producing all supporting elements aimed at establishing the existence of such a flaw or defect. If the Customer fails to report the existence of a visible flaw or defect to PARTEK. within three working days following the date of goods reception, the Customer shall be presumed to cover any such flaw. In addition, the Customer is required to enable PARTEK. to establish the purported flaw for itself and to remedy matters where appropriate.
Article 9 – Liability
1. Other than as a result of willful misrepresentation, gross negligence or failure to perform an essential obligation under the terms of the contract, PARTEK.’s liability cannot be prejudiced.
2. In addition, the customers from the trade have appropriate expertise relating to products sold by PARTEK. in such a way that the Customer bears full responsibility for choosing the appropriate products, the way in which the products are incorporated into assemblies and the proper use of said products, in compliance with best practices and applicable regulations.
3. The parties hereby expressly acknowledge that the obligations incumbent on PARTEK. are best efforts obligations. In no event shall PARTEK. be bound in any way shape or form by the final result expected by the Customer.
Article 10 – Force majeure – Exceptional circumstances – Unforeseen circumstances
1. In the event of force majeure or exceptional circumstances, i.e. the occurrence of an event beyond the control of PARTEK. making it impossible for the latter perform all or part of its, PARTEK. shall be relieved from its obligations without owing damages or compensation in any shape or form.
2. For the purpose of the application of the present clause, the events listed below shall be considered as instances of force majeure or as exceptional circumstances, constituting due grounds for the suspension or the extinction of PARTEK’s obligations: fire, natural disasters and exceptional climatic events, labour disputes at the company’s subcontractors and suppliers, exceptional difficulties in and the impossibility of using the means of transport and transport channels, the forces or the chains of command of the Belgian, European or overseas public authorities, changes in Belgian, European or overseas regulations, accidents affecting manufacturing operations and the storage of the products, the total or partial stoppage of supplies, the bankruptcy of the carrier, machinery breakdown, war, acts of third parties or any external that are such so as to delay, or prevent the performance of the commitments taken on…
3. If, due to circumstances beyond its control, PARTEK. sees the performance of its obligations made impossible or simply more expensive, burdensome or more difficult, PARTEK. and the Customer undertake to loyally negotiate an adaptation of the contractual terms in good faith with a view to restoring the contractual balance within 30 calendar days following the date of notification of such circumstances by PARTEK. to the Customer. Failing an agreement within the time limit specified above, each of the parties shall be within its rights to unilaterally terminate the contract without owing any kind of compensation.
Article 11 – Transfer and subcontracting
PARTEK. reserves the right to transfer and to subcontract all or part of the rights deriving from the contract and the present general terms and conditions without the Customer’s agreement.
Article 12 – Cancellation
If either of the parties defaults on performing of one or several essential obligations incumbent on said party and, failing action to remedy such state of affairs within 15 days after a notice of default has been sent, the co-contracting party shall be within its rights to unilaterally terminate the agreement to the detriment of the defaulting party, without prejudice to the co-contracting party’s right to claim damages and interest by way of compensation for the prejudice incurred as a result of said non-performance.
Article 13 – Miscellaneous
1. No derogation or waiver of a provision contained in the present general terms and conditions can be considered as a waiver of the remaining clauses of these general terms and conditions, which shall continue to remain applicable in full.
2. If an invoice is raised made out to a third party at the request of the Customer, the Customer and the third party shall be jointly and severally bound to make payment of said debt to PARTEK.
3. The nullity or inapplicability of one of the clauses of the present general terms and conditions, or quotes or contracts shall not affect the validity or the applicability of the remaining clauses. In said case, the parties undertake to substitute the void or inapplicable clause by a lawfully valid clause that closely approximates the original business meaning of the void or inapplicable clause. If the parties fail to reach agreement thereon, the remaining clauses shall retain their validity in full and remain wholly applicable.
Article 14 – Applicable law
The general terms and conditions, as well as all contracts or quotes which the general terms and conditions apply to, shall be exclusively governed by Belgian law.
Article 15 – Competent courts
Failing amicable settlement thereof, any disputes relating to the negotiations, establishment, performance or the dissolution of the contractual relations between PARTEK. and the Customer shall be brought before the courts and tribunals of Bruges (Belgium) which shall have exclusive jurisdiction.