General conditions

The Dutch version of these general terms and conditions is the only authentic version. All versions can be consulted on www.demtec.eu.com.

1. All commercial transactions between Private Company with Limited Liability “CONSTRUCTIE WERKHUIZEN DEMAITERE”, with its registered office at 8890 MOORSLEDE, Roeselaarsestraat 171, VAT BE 0406.542.143, RPM Ieper (hereinafter referred to as "DEMAITERE") and the customer shall be governed by the present General Conditions (hereinafter called Conditions). By placing an order, the customer acknowledges to have taken notice of and accepting these Conditions. These Conditions take precedence over the general and/or other conditions of the customer, even if these should indicate that they are the only valid terms. If one or part of a provision of these Conditions should be rendered null and void, the rest of the provisions and/or the remainder of that provision shall remain valid. If one or part of the provisions is rendered null and void, DEMAITERE and the Customer, as far as is possible and according to their own loyalty and convictions, shall negotiate to replace the invalid provision with an equivalent provision in the general spirit of these Conditions. DEMAITERE reserves the right to amend and/or adjust its General and/or Special Conditions at any time whatsoever.

2. Except if expressly stipulated otherwise, a quotation from DEMAITERE shall be solely deemed an invitation for the customer to place an order and is in any case without obligation. DEMAITERE can withdraw any quotation at any time whatsoever. The indicated prices, qualities of the products/the work as well as the delivery dates are communicated for informational purposes only, and can be modified by mutual agreement. A quotation for one order does not automatically apply to following orders. A quotation only includes those products and work that are explicitly mentioned therein, with the express exclusion of extra work as a result of a modification of the order by the customer, unforeseen circumstances or any other reason.

3. A contract between DEMAITERE and the customer shall only come into effect upon written or electronic confirmation of the customer's order by DEMAITERE or by its execution by DEMAITERE. Any modifications or extensions to an agreement shall only be valid upon written consent, e.a. concerning price, payment conditions, term of execution, etc. For any cancellation of an order or purchase, even partial, the customer will be charged damages equal to 25% of the price of the cancelled order or purchase with a minimum of 500 EUR, notwithstanding the right of DEMAITERE for compensation of higher proven damages, such as, yet not restricted to, the costs of the material ordered.

4. DEMAITERE always presents the most optimum/safe configuration. The customer is however free to stipulate the configuration he prefers. DEMAITERE is not responsible for this choice. In the case of omittance of components or accessories, which, for example, improve the security, DEMAITERE shall not be responsible for direct nor indirect damages. In the event of a pure execution according to plans and calculations drafted or drawn up by the customer, the responsibility of DEMAITERE remains limited to the strict implementation according to specifications of these plans. DEMAITERE will not be held liable for any form of damage which results from the plans and calculations drafted or drawn up by the customer.
Except if expressly stipulated otherwise in writing, DEMAITERE is entitled to introduce technically necessary  modifications to products/work, their equipment and/or components, without the possibility for the customer to derive any right whatsoever from that. Such additional work shall automatically be charged to the customer and will be considered to be accepted by the customer.
If certain components are, for reasons independent of the control of DEMAITERE, not in stock, DEMAITERE may replace these missing components at its choice and discretion by a functional equivalent of a another brand. Such replacement of missing products by a functional equivalent, shall in no case be considered as a reason for a reduction in price or a dissolution of the agreement. The possible extra price for such a replacement is not included in the price and shall, unless expressly agreed otherwise, always be charged to the customer.

5. DEMAITERE preserves the copyrights and all intellectual rights to documents, technical descriptions, plans, designs, models or photograph and this irrespective if the costs related to the development of such information was charged to the customer. This data may, as long as the data is not made publicly accessible by DEMAITERE, not be copied, be used for other purposes then those for which the data was developed or shown to third parties without DEMAITERE's prior written consent and shall be returned to DEMAITERE upon simple request. DEMAITERE retains the right to use aforementioned information for advertising purposes without creating any right for remuneration or compensation of the customer. Each violation of this paragraph by the customer shall give reason to payment of fixed damages that amount to 10% of products or services notwithstanding compensation of higher proven damages.
 
6. Any mentioned delivery times are always merely indicative. Non compliance with delivery times shall never give reason to dissolution of the agreement to the detriment of DEMAITERE, to subrogation nor payment of any damages to the customer. Changes to an order, quotation and/or sale agreement automatically result in lapse of the proposed expected delivery times. DEMAITERE shall not be liable for any delays incurred as a result of the default of suppliers of DEMAITERE, the customer or some other third party.
Any circumstances which, in all fairness, were unforeseeable at the drafting of the quotation, were unavoidable and which render the execution of the agreement financially or otherwise more difficult then normally foreseen (e.a. war, natural disasters, strike or lock-out, fire, flood, confiscation, embargo, insufficient means of transport, general scarcity of raw materials or products, limitations on energy consumption, default of the customer to deliver, to DEMAITERE, the necessary information, access and/or accommodations (water/electricity and heating) needed for the execution of the agreement) are to be considered as circumstances of force majeure. Such circumstances entitle DEMAITERE to review the conditions of the agreement, demand damages or terminate the agreement without any charge or liability, through a letter sent by registered mail to the customer.

7. Unless explicitly agreed otherwise, products are always delivered EX WORKS (Incoterms 2011) the warehouses of DEMAITERE. The cost and risk for the collection from and/or supply of products by DEMAITERE shall remain with the customer. Possible costs related to the receipt of the products are at the charge and expenses of the customer.

If it is agreed that the customer shall arrange for the collection of the products, the customer must collect the products on his own risk and expense at the time and location as indicated by DEMAITERE time indicated and place. In the event the customer does not collect the products within the 5 working days after the indicated time, a warehousing cost of 1% of the invoice amount per week, shall be charged to the customer.
If it is agreed that the customer shall carry out the installation of the products bought from DEMAITERE himself or appoints a third party to perform the installation on his/her behalf, this shall happen under the sole responsibility and risk of the customer. In such case, DEMAITERE can in no way be held liable for damages, either direct or indirect, which result from such installation. 

If it is agreed that DEMAITERE shall carry out the installation of the products purchased, DEMAITERE shall only accept liability concerning the functioning of the products/work insofar as the properties of the location where the assembly is to be carried out, have been prepared in such a way that no circumstances can possibly occur that will make a correct assembly more difficult.    
Access doors must be wide enough, bases and floors, on which the machines shall stand need to be constructed in a correct and timely manner and shall fall entirely under the responsibility of the customer.
During the installation of products/work, the customer is obliged to, at his own expense, provide the necessary public utilities, sufficient tooling and manpower. Prior to the execution of the agreement, the customer will inform DEMAITERE of any specific legal conditions the products/work have to comply with. If and when the properties of the location where the assembly is to be carried out, are not in accordance with the conditions as described above, all resulting costs will be charged to the customer by DEMAITERE.

8. The customer shall carry out an initial check immediately on collection and/or delivery of the products/work. This immediate compulsory check concerns among other things (this list is purely an example) the quantity and weight, compliance of the delivery, visible defects, correct location(s), etc. The customer will, under penalty of loss of rights, communicate in writing to DEMAITERE apparent deviations within 48 hours after collection, delivery and/or installation and in any case before putting the products into use. 

If it is agreed that DEMAITERE shall carry out the installation of the products purchased, necessary testing shall be carry out prior to acceptance in order to ascertain whether the products/work meet the contractual requirements for acceptance. The customer shall provide, free of charge, energy, lubricants, water, fuel, raw materials and other materials, which are necessary for the testing and for the final modifications in relation to these tests.

Products/work shall in any case be considered as accepted by the customer, when:
(i) the testing has been carried out with good result or the customer has approved the products/work;
(ii) the products/work are put into use by the customer. If the customer takes only a part of the products/works into use, then that part shall be considered as accepted;
(iii) the customer does not comply with aforementioned obligations to provide the resources necessary for performing the testing;
(iv) the customer does not accept the products/work on the basis of small defects or missing components which do not prevent the use of the products/work.

For a period of one year, as of the date of the final invoice, DEMAITERE gives a warranty for non-conformity or hidden defaults of the products/work, notwithstanding the fact that no warranty provided by DEMAITERE shall exceed the warranty as given by individual suppliers, subcontractors, manufacturers of materials, products or components. Any complaint regarding visible faults or non-conformity customer shall be provided to DEMAITERE via registered letter within 48 hours after discovering such faults. No liability for visible or hidden faults can be sustained by DEMAITERE if this period has elapsed without receipt of the above-mentioned registered letter. Any action against DEMAITERE expires when the delivered products/works processed, transformed, repaired by the customer or any third party, or in case of abnormal or extraordinary use, strain and/or wear and tear of products/work or damage cause by force majeure. Notification of a complaint shall not absolve the customer from the obligation to make payments. The customer is required to compensate costs incurred in connection with unjustified complaints.

9. Liability by DEMAITERE shall be confined to liability which is compulsorily imposed by law. DEMAITERE shall not be held liable for indirect damage, such as loss of turnover, loss of profit or any rise in general costs. Neither shall DEMAITERE be liable for any damages resulting from faults caused directly or indirectly by an action of the customer or third party, regardless of whether this is caused by a fault or omission, or in the case of force majeure. In the event DEMAITERE is considered to be liable, DEMAITERE, at its sole discretion, may either replace the defective products/work, repair the products/work or refund the price of the defective products/work to the customer. DEMAITERE will under no circumstances be held liable for mistakes attributable to incorrect or incomplete information or data notified by the customer.

10. Unless otherwise specified , the customer shall pay the price for the products/work in separate installments, according to the following apportionment:
(i) 30% of the price at the conclusion of the agreement;
(ii) 60% of the price prior to the delivery of the products/work to the customer, regardless whether or not DEMAITERE is responsible for the installation;
(iii) 10% of the price within the 30 days after the delivery of the products/work to the customer;

For orders or agreements which exceed a value of 50.000 EUR, VAT excluded, DEMAITERE reserves the right to demand a bank guarantee from the customer, prior to the any execution of the agreement. Unless explicitly agreed otherwise, the DEMAITERE prices are exclusive of VAT and other levies as well as delivery, transport, insurance and administration costs. 

Replacement of unavailable materials by others, change of supplier(s), as well as changes in currency rates, increase in resource, material and tooling prices, wages social benefits, or any other government imposed charges, levies or taxes, transportation costs or insurance fees, taking place between the moment of conclusion of the agreement and delivery, shall give DEMAITERE the right to proportionally adjust the price for the products/work.

11. Unless otherwise specified, all invoices of DEMAITERE shall be payable in cash on the invoice date, without discount, at the registered office of DEMAITERE. Invoices can only be validly challenged by sending a letter by registered mail, within five days after the invoice date, indicating the invoice date, the invoice number as well as a detailed justification.

Any amount that remains unpaid after due date shall be, legally and without prior notice of default, increased by a monthly  interest of 1%, whereby each month begun shall be considered as a month completed. In addition, any unpaid invoice shall be increased with any costs for DEMAITERE related to the recovery of the amount outstanding as well as a lump sum of 10% of the amount invoiced and remaining unpaid, with a minimum of 250 EUR (VAT excluded), without prejudice to DEMAITERE's right to prove further damages and (judicial) recovery expenses.

In so far as the customer remains in default in respect to one or more outstanding payments to DEMAITERE, the latter shall be entitled to discontinue all supplies of products and services or cancel undelivered orders until all outstanding accounts have been cleared.

The default of payment of an invoice on its due date, including any interests and penalties due, entails the immediate exigibility of all invoices, including invoices that are not yet due, and annul all previously agreed payment modalities. The same rule applies in the case of threatening bankruptcy, judicial or conventional dissolution, judicial composition, persistent default of payment, or any other fact proving the insolvability of the customer.

The payment by the customer – in whole or in part – of an invoice without any reservations implies approval of the invoice. Payments are always accepted, under reservation of all rights, and are written off first on the judicial costs, then on the interests due, then on the penalty clause and finally on the principal outstanding amount.

12. In accordance with the Belgian Act on Financial Guarantees of 15 December 2004, DEMAITERE and the customer will automatically set off all currently existing and future debts towards each other by operation of law. This means that in the long-term relationship between DEMAITERE and the customer the largest amount receivable will always remain on balance after the above-mentioned automatic set-off. This set-off will in all events be enforceable against any trustee in bankruptcy and other joint creditors, who will therefore not be able to object to the set-off performed by the customer and DEMAITERE.


13. Products delivered shall to the extent permitted by applicable law remain the property of DEMAITERE until receipt by DEMAITERE of payment in full (including all moneys owed plus any default interest thereon); this reservation of title applies equally in the case of installation of the products in other products. If the title of DEMAITERE extinguishes upon installation the Customer's arising co‐owners' interest will pass over to DEMAITERE. During this period, the customer shall not sell or pledge the products sold to a third party, or to dispose of the goods in another way. If the customer fails to meet the above title retention and prohibition of alienation, the above right automatically passes on the resulting sales price, and the customer shall pay to UNITRON a compensation equal to 70% of the sales price. Without prejudice to aforementioned retention of title, DEMAITERE shall, from the moment the Products/work are delivered to the customer onwards, no longer be responsible in case of damage or theft of these goods.

14. The customer gives DEMAITERE authorization to incorporate the personal data supplied by the customer in an automated data file. This data will be used with respect to conducting informational or promotion campaigns in relation to services and/or products offered by DEMAITERE within the framework of the contractual relationship between DEMAITERE and the customer. The customer has the right to demand notification and/or rectification of his personal data. In the event the customer no longer wishes to receive commercial information from DEMAITERE, the customer must inform the customer DEMAITERE of this. Costs related to modifications of personal data, made on the request of the customer, shall be charged to the customer. The customer gives DEMAITERE authorization to use images of the products/work delivered to and/or installed for the customer for: (purely exemplary summary) general information, advertising aims, publication on the website of DEMAITERE, publication in folders, etc.

15. All disputes, claims, controversies and differences arising out of or relating to the Agreement and all sales contracts, concluded between the parties regarding the Products, resulting here from, or the termination, breach or invalidity thereof, shall be settled to the competent courts of the location of the registered offices of DEMAITERE, except in the event DEMAITERE decides the courts of the location where the customer has its registered office are competent.

The Agreement and all sales contracts, concluded between the parties regarding the Products, resulting here from shall be governed by and construed in accordance with Belgian law excluding the articles 1-4, 40 and 89-10 of the Vienna convention on the International Sale of Goods.

 

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