General terms and conditions
GENERAL TERMS AND CONDITIONS BV SOETEN (CBE 0750.501.866)
ART. 1. DEFINITIONS
SOETEN means: The besloten vennootschap (limited liability company under Belgian law) SOETEN, with its registered office at 8400 Oostende, Nieuwpoortsesteenweg 620, RPR Gent division Oostende, registered in the Crossroads Bank for Enterprises under number 0750.501.866 and with VAT number BE0750.501.866. The Customer is any person with whom SOETEN is or will be in a contractual relationship. The Consumer is any Customer who is a natural person acting for purposes that are outside his trading activities, business activities, craft or profession. The Parties are SOETEN and the Customer together. The Conditions are these general terms and conditions. An Agreement is the combination of the Conditions with special conditions, to which SOETEN and the Customer are parties.
ART. 2. THE GENERAL TERMS AND CONDITIONS
2.1. The Conditions are applicable as a framework agreement to the conclusion, execution and termination of all Agreements between the Parties. They are additionally applicable to Agreements entered into earlier. If any provision is deviated from in a special agreement, this must be done expressly and reciprocally and does not affect the applicability of the remaining provisions.
2.2. SOETEN’s voluntary non-application or enforcement of a clause stipulated in its favor shall not constitute a waiver.
2.3. The Consumer must expressly accept the Conditions. Unless manifestly proven otherwise, the Customer implicitly accepts them, if not explicitly, inter alia, by accepting an offer or paying an invoice on which they are stated, or by failing to protest them within a reasonable but short period of time from receipt thereof.
2.4. The parties choose these Conditions and agree that the general terms and conditions (in the broadest sense) of the Customer shall not apply to the Agreements unless they are expressly accepted by SOETEN and/or they were accepted by SOETEN prior to the Customer’s acceptance of these Conditions, in which case the Customer’s general terms and conditions do apply to the Agreements under which SOETEN has accepted them (strict interpretation), albeit in a subordinate and supplementary manner. In case of conflict between provisions, these Terms and Conditions shall prevail. The Customer waives its own clauses that limit or exclude the application of these Conditions to the contrary. Accordingly, there will be no mutual waiver of conditions.
ART. 3. OFFER AND ACCEPTANCE
ART. 3.1. PROVIDING INFORMATION
The Customer is responsible for correctly and fully informing SOETEN of his/her needs. Conversely, all necessary information about the goods is available to the Customer, who can always contact SOETEN for additional information. The Customer is always responsible for his final choice. The Customer must inform SOETEN in advance of all specific dangers and risks (known, actual or potential) relating to the use he intends to make of the goods.
ART. 3.2. OFFER
General brochures, price lists, catalogs, website and the like are purely indicative and do not bind SOETEN, they do not constitute an offer. Quotations bind SOETEN for a period as stated on the specific quotations or agreements, provided they are accepted by the Customer without reservation. This acceptance must be made expressly, by the Customer’s signature and return. Until such acceptance by the Customer, SOETEN may withdraw them at any time. The Customer must check offers for errors and verify that the proposal corresponds to his needs and wishes. If the Customer accepts the offer subject to modifications or conditions, or only partially, or outside the aforementioned period, the offer has lost its binding force and such acceptance shall be deemed an offer from the Customer to SOETEN. In the event of an offer by the Customer to SOETEN, the Agreement comes into effect: if SOETEN expressly accepts the Customer’s offer, or if SOETEN implicitly accepts the Customer’s offer by commencing performance, or if SOETEN makes a (new) offer to the Customer which is accepted by the Customer without reservation. An offer includes only what it expressly states, while stocks last, and applies only to the one order for which it was made, without being binding for other or subsequent (requests for) collaborations. It is to be interpreted strictly in this respect. All necessary or additionally requested goods, works or costs for which no price has been expressly given shall be borne by the Customer. Even with an absolute lump sum, additional works and additional costs may be proved and charged by all legal means. All amounts are exclusive of VAT, unless otherwise stated. VAT, taxes and other duties, present or future, shall always be borne by the Customer.
ART. 4. PRICE
ART. 4.1. GENERAL
Invoices are payable in cash in euros. They always relate to bringing debts. The price shall be paid in accordance with the terms and conditions stipulated in the quotations or (special) agreements between the Customer and SOETEN.
ART. 4.2. NOT INCLUDED
Prices are to be interpreted strictly. Delivery, placement, installation, electricity and fuel are not included, unless expressly agreed otherwise. Anything not expressly listed as included is not included. Anything not included but delivered will be charged at market rates (marginal review). VAT, other taxes and charges, and their changes, are always at the Customer’s expense. If the VAT rate is changed before the invoicing of the balance, the price of works and goods still to be invoiced and delivered shall be adjusted accordingly, even if a price including VAT was agreed upon.
ART. 4.3 LATE OR INCOMPLETE PAYMENT
4.3.1. Any debt that remains unpaid in whole or in part on the due date by the Customer who is not a Consumer shall, ipso jure and without notice of default, accrue interest at the legal interest rate in accordance with the Law of August 2, 2002 on combating late payment in commercial transactions, plus 2.00%, which cannot be less than 9.00%, counting from the due date until the day of payment as well as make a lump-sum compensation of 12.00% on the principal amount outstanding at the due date, with a minimum of 250,00 EUR per principal amount, without prejudice to the right to claim higher damages, and without prejudice to the right to compensation for legal costs (including the applicable litigation fee) and execution costs.
4.3.2. If the Customer is a Consumer, interest will be payable at the interest rate in accordance with the Law of August 2, 2002 on combating late payment in commercial transactions (the reference interest rate plus eight percentage points, as defined by Article 2 of that law). This from the first calendar day following the day on which a first reminder is sent to the Consumer, if the creditor is an SME. Also, in this case, liquidated damages will be due as follows: 20,00 EUR if the balance due is less than or equal to 150,00 EUR; 30,00 EUR plus 10.00% of the amount due on the tranche between 150,01 and 500,00 EUR if the balance due is between 150,01 and 500,00 EUR; 65,00 EUR plus 5.00% of the amount due on the tranche above 500,00 EUR with a maximum of 2.000,00 EUR if the balance due is above 500,00 EUR. This interest shall only be due and payable and the damages shall only be payable after a notice of default on durable medium in the form of a first reminder in accordance with Art. XIX.2. WER and after the expiration of the grace period provided by this article of law, if the Consumer has not paid his debt within this period. This concerns the costs of amicable recovery and does not affect the right to reimbursement of the costs of judicial recovery such as court costs (including the applicable court fee) and execution costs. The first notice of default is free of charge. From a second notice of default, a cost of 7,50 EUR plus the postage costs applicable at the time of dispatch may be charged.
4.3.3. If all or part of a due debt of the Customer remains unpaid, all of the Customer’s debts not yet due shall become immediately payable. Payments after the due date will first be charged on interest, damages, court costs and execution costs, and only then on the principal amount. Interest owed by the Customer shall be capitalized annually.
4.3.4. Any debt remaining unpaid in whole or in part by SOETEN on the due date shall, as of formal notice, expose the same interest and damages, calculation rate although reduced by two percent (per year, in the case of interest). This compensation is slightly lower, as the Parties consider that the economic risk of SOETEN in case of non-payment by the Customer is often higher than vice versa. The Customer accepts these fees and practices as equivalent.
ART. 4.4. JOINT AND SEVERAL LIABILITY
If an order is placed by several persons, they will be jointly and severally liable for payment of the price, costs and fees, regardless of to whom SOETEN has sent its invoice. Whoever places an order with a request to charge it to a third party is also jointly and severally bound.
ART. 5. DELIVERY
ART. 5.1. PLACE AND ACCEPTANCE
The Customer is obliged to make delivery possible. If delivery at a location has been agreed, the Customer must ensure that the delivery location is normally accessible and that he or a representative is present to accept the delivery.
ART. 5.2. DELIVERY TIME
5.2.1. No specific delivery deadlines apply, delivery shall be made within a reasonable period of time.
5.2.2. Express deadlines are set in working days. The following are not considered working days: Saturdays, Sundays and legal holidays.
5.2.3. The delivery period shall commence on the first working day following the point at which all commercial and technical details have been agreed, SOETEN has all necessary data, all necessary conditions for performance have been met, and the agreed payment has been received (if applicable).
5.2.4. All cases of force majeure, or delays caused by the Customer or by third parties, extend the delivery period, without entitlement to compensation.
5.2.5. The Parties agree that any explicit deadlines are indicative, which SOETEN will respect to the extent possible and reasonable. A deviation from them does not necessarily constitute a default and therefore does not necessarily entitle the Customer to claim any damages or unilaterally terminate the contract.
ART. 5.3. DELAY
If a strict delivery period is provided for in special conditions, the Customer may only demand its termination if SOETEN has been given notice of default to perform its obligations within a reasonable period, adapted to the circumstances, on the understanding that the Customer may not claim any damages from SOETEN if the performance of the obligation has still been carried out within this reasonable period.
ART. 5.4. DELIVERY COST
Unless expressly stipulated, delivery is not included in the price. If SOETEN delivers outside its registered office, this will be done at market-based (cost-plus) prices, to be assessed at its discretion. All goods travel (and are unloaded) at the expense and risk of the Customer. Assembly will be charged to the Customer in addition to the price.
ART. 6. INTUITU PERSONAE
ART. 6.1. TRANSFER OF AGREEMENT
SOETEN provides its performance exclusively for the benefit of the Customer. Third parties cannot derive any rights from the work performed and the results thereof.
ART. 6.2. SUBLETTING
Subletting or provision of goods by the Customer to third parties is prohibited.
ART. 6.3. SUBCONTRACTING
SOETEN is always permitted to cooperate with third parties (its own suppliers, subcontractors and specialists) in the full or partial performance of its obligations. The cooperation is not intuitu personae in this respect.
ART. 7. LIABILITY
ART. 7.1. BEST EFFORT OBLIGATIONS
SOETEN commits itself exclusively to best effort obligations, even in the event of case law or customs to the contrary in similar cases, except where mandatory law expressly prevents this.
ART. 7.2. EXONERATION
SOETEN shall only be liable for damages as a result of its wilful misconduct, its gross negligence or that of its appointees (including, in the case of B2C, that of its agents) or, except force majeure, the non-performance of its essential (B2B) or main (B2C) obligations. SOETEN’s liability per claim is limited to a maximum of the actual intervention of SOETEN’s professional liability insurer, any excess borne by the Customer. In B2C relations, always without prejudice to SOETEN’s civil liability in the event of death or bodily injury of the Consumer resulting from an act or omission of SOETEN. If multiple claims result from the same fault, they will be considered as one claim. SOETEN can never be held liable for indirect damages, such as, but not limited to, financial and commercial losses, loss of profits, increase in costs, schedule failure, software failure, loss of expected profits, capital, clientele, and others.
ART. 7.3. FORCE MAJEURE AND HARDSHIP
Force majeure is the situation where performance of the Agreement by SOETEN is prevented in whole or in part, temporarily or otherwise, by circumstances beyond SOETEN’s reasonable control. Hardship is any change of circumstances, beyond SOETEN’s reasonable control, that seriously interferes with SOETEN’s performance and/or gives rise to disproportionate damage to its interests. No unforeseeable, unaccountable and/or unavoidable character need be or be proven in the case of force majeure or hardship (it being understood that SOETEN may not invoke force majeure or hardship when it results from its own willful misconduct or gross negligence of itself or its appointees or agents, or from failure to perform essential obligations). SOETEN shall notify the other Party within a reasonable time of the force majeure or hardship. SOETEN shall not be obliged to perform any obligation impeded by force majeure and/or hardship. In the event of hardship, SOETEN shall have the right to require the other Parties to negotiate, with good faith, alternative equitable clauses remedying the hardship. In case of force majeure or hardship longer than three months, consecutively, SOETEN is entitled to request the dissolution of the Agreement or to invoke it itself without liability and without obligation to pay any damages. Similarly, in the event of force majeure on the part of the Customer, longer than three months, consecutively, SOETEN shall be entitled to request the dissolution of the Agreement or to invoke it itself without liability and without obligation to pay any damages. Hardship cannot be invoked by the Customer, the Customer does not consider it manifestly unbalanced, given a higher economic risk towards SOETEN.
ART. 7.4. INDEMNIFICATION
7.4.1. If the Customer fails to perform any of its obligations and, as a result, a third party has brought or threatens to bring a claim against SOETEN and/or its appointees and employees, the Customer shall indemnify and hold SOETEN and/or its appointees and employees harmless from all loss, damage, expenses and liability resulting directly or indirectly therefrom.
7.4.2. The foregoing limitations of liability shall also apply in the event of liability on the part of SOETEN to third parties as a result of cooperation with the Customer. The Customer shall indemnify SOETEN against any further claim by such third party.
ART. 8. EXCEPTION OF NON-PERFORMANCE
In the event that the Customer fails to perform one or more of its obligations towards SOETEN in a timely and correct manner, notwithstanding SOETEN’s compliance with its due obligations, SOETEN may suspend the performance of its further obligations towards the Customer in whole or in part, until the Customer has fulfilled all its obligations. The parties agree that this right also applies to obligations under other agreements (cross-file). All costs and charges arising from such a suspension (e.g.: standing and storage charges) shall be borne by the Customer and must be paid immediately. The Customer waives any indemnity in the event that SOETEN made an error of interpretation in doing so, except willful or gross negligence. For the purposes of this clause, Customer shall mean Customer and its affiliates, and SOETEN shall mean SOETEN and its affiliates. SOETEN is not obliged to first suspend its obligations, before invoking the end of the Agreement.
ART. 9. RETENTION RIGHT
SOETEN reserves the right to refuse delivery of the goods entrusted to it or transported or handled by it, until full payment of all amounts due to SOETEN, even without these amounts having to relate directly to the withheld goods. Storage costs may be charged. As soon as the right of retention is invoked, the risk (insofar as it was with SOETEN) reverts to the Customer. With regard to the Consumer, this right of retention does not apply if his/her refusal to pay is based on an established breach of contract or malperformance by SOETEN.
ART. 10. RETENTION OF TITLE
Rented goods are and remain the property of SOETEN, even if they are not returned on time. However, all risks are and remain the responsibility of the Customer from delivery until return. Sold goods remain the property of SOETEN until full payment of the principal sum by the Customer. SOETEN is entitled, both in the case of purchase and rental, to recover unpaid goods without the prior consent of the Customer. The Customer grants SOETEN the right to enter its property for this purpose.
ART. 11. SET-OFF / NETTING
SOETEN shall be entitled to set off claims against the Customer against any claims of the Customer against SOETEN, including after concurrence or after assignment and pledging of claim in accordance with Article 14 of the Law of December 15, 2004 on financial securities. Conversely, the Customer is not allowed to offset his claims against SOETEN against any claims of SOETEN, unless the Customer is a Consumer.
ART. 12. STATUTE OF LIMITATIONS AND EXPIRY
All claims of the Customer against SOETEN must be brought promptly in court, and in any event within six months from the time the Customer discovered or reasonably should have discovered the fact that gave rise to the claim, unless shorter periods are provided for by law or the Agreement. Such under penalty of forfeiture and without prejudice to longer deadlines from other applicable sources of law.
ART. 13. PRIVACY AND GDPR
The Customer explicitly authorizes SOETEN to process all (personal) data required for the order in the context of the cooperation for one or more purposes. For more details, SOETEN refers to its privacy policy.
ART. 14. INTELLECTUAL PROPERTY
All intellectual property rights and derivative rights directly or indirectly related to the hire or purchase shall remain with SOETEN (or the artists with whom SOETEN collaborates). All concepts, creations, working methods, (preliminary) designs, drawings, plans, offers… remain the property of SOETEN. Unless a specific exclusivity contract has been concluded, SOETEN has the right to reuse its intellectual and/or creative work. The transfer of the intellectual rights can only appear from an explicit written agreement and cannot result, for example, from the fact that the creation process was foreseen in the order or that this creation process was specially remunerated, nor from the transfer of the product. The Customer grants permission to SOETEN to take photographs of its works and results and to use them for publicity purposes, among others.
ART. 15. SEVERABILITY, MODERATION AND NULLITY
If any provision of the Conditions or an Agreement should prove to be invalid, void or exaggerated in whole or in part at law, the Parties agree that such provision shall be automatically reduced, and/or the Parties or the Court (ex officio or upon request) shall reduce such provision, to the maximum extent permitted by law and/or shall replace the invalid or void or exaggerated provision as if it had always been there in the mitigated and/or valid version, a valid version that most closely reflects the true and original intent of the Parties. These provisions will thus remain binding for the maximum part thereof that is legally permissible. If more subordinate nevertheless a clause must be decided to be null and void and even for the court it proves impossible to provide a replacement valid clause, this will not result in the nullity of the remaining provisions (except when the entire article, respectively the entire agreement, can no longer continue to exist without that clause).
ART. 16. LANGUAGE
When Conditions are drawn up in several languages, the Dutch-language version will take precedence over all other versions of the Conditions.
ART. 17. JURISDICTION AND CHOICE OF LAW
All legal relations between the Parties shall be exclusively governed by Belgian law. The Vienna Sales Convention (CISG) shall not apply to the agreements between SOETEN and the Customer. The disputes relating to these legal relationships fall within the exclusive jurisdiction of the Belgian courts of the jurisdiction where SOETEN has its registered office, unless SOETEN prefers to bring the dispute elsewhere in Belgium. If the Customer is a Consumer, the courts designated by article 624, 1°, 2° and 4° of the Belgian Judicial Code shall have jurisdiction. The parties shall choose Dutch as the language of jurisdiction.
