1.1 Without prejudice to the applicability of any special terms and conditions contained in a separate written agreement, these general terms and conditions shall apply to every quotation, offer, order confirmation, order form and agreement concluded by and between PROVAN BVBA, with its registered office at Troisdorflaan 22, 3600 Genk, Central Enterprise Database number 0463.077.307 (‘PROVAN’), and its customer (‘the Customer’). The provisions made in any separate written agreement shall prevail in the event of conflicts between these general terms and conditions and such written agreement.
1.2 By giving an oral or written order or instruction, the Customer shall be deemed to have accepted these general terms and conditions. Acceptance of the general terms and conditions shall further constitute the complete waiving by the Customer of application of its own general terms and conditions (including conditions of purchase).
1.3 Any provision made in these general terms and conditions that is found to be unenforceable or in conflict with any provision of mandatory law shall not affect the validity or the enforceability of the other provisions of the general terms and conditions or the validity and enforceability of the part of the relevant provision that is not unenforceable or in conflict with mandatory law. In such cases parties shall negotiate with each other in good faith with a view to replacing the unenforceable or conflicting provision by an enforceable and legally valid provision that comes as close as possible to the object and purport of the original provision.
2. Descriptions of performable works and deliverable goods
A separate order confirmation and/or separate agreement between PROVAN and the Customer shall describe the performable works and/or the deliverable goods. Without prejudice to provisions made in these general terms and conditions, the Customer acknowledges and accepts the technical restrictions, warranty limitations and any other comments and reservations concerning the performable works and/or the deliverable goods as may be contained in the offer, order confirmation and/or separate agreement concluded by and between PROVAN and the Customer.
3. Pricelists, offers and orders
3.1 All pricelists, offers and contract proposals of PROVAN shall be without obligation, shall be provided solely by way of information and shall not bind PROVAN until such time as parties have reached agreement with each other. Pricelists may be amended without notice. Any goods ordered by or work instructions given by the Customer shall bind the Customer but shall not bind PROVAN until it has accepted them in writing.
3.2 Delivery and performance times shall be stated for guidance only and shall not be binding. Unless expressly otherwise agreed in writing, any delay in service provisioning and/or delivery/performance shall not give rise to any penalty, compensation for damage or cancellation of the order or instruction.
4. Price and payment
4.1 Performance of works and delivery of goods shall be invoiced in accordance with the prices and conditions stated in the offer, order confirmation and/or agreement. Any levy or tax charged or owed on the prices of PROVAN shall always be payable by the Customer.
4.2 Unless expressly otherwise agreed, the prices stated by PROVAN shall be exclusive of VAT, shipment and insurance costs, which shall be payable in their entirety by the Customer.
4.3 If the Customer wishes to make changes to instructions or orders after placing the initial order, the changes shall be made only if (i) PROVAN expressly consents to do so, and (ii) the Customer accepts that PROVAN may charge to the Customer the entirety of all price adjustments and costs incurred for the changes.
4.4 Any cancellation of an instruction or order shall always be made known in writing and shall be valid only if accepted by PROVAN in writing. If it has accepted cancellation, PROVAN shall have the right to require compensation for any damage.
4.5 Unless otherwise stipulated in the agreement or on the invoice, the PROVAN invoice shall be payable cash to its registered office not later than 30 days after the invoice date in the currency stated on the invoice. The net amount of the invoice shall be paid. The exchange rate risk, bank charges and other costs shall be for the account of the Customer. Debt set-offs by the Customer are expressly ruled out.
4.6 Complete or partial non-payment of any invoice by the due date shall cause the Customer automatically to owe without prior notice of breach late payment interest over the unpaid invoice amount at the statutory Belgian rate plus 2%, with the proviso that such interest shall never be less than 12% on an annualised basis, for each commenced month regardless of the initiation of legal action. Moreover, the Customer shall automatically owe without prior notice of breach a fixed amount equal to 10% of the unpaid invoice amount, subject to a minimum of €50. Unless otherwise agreed, payments made to intermediaries, including but not confined to agents and representatives, shall be deemed non-existent.
4.7 Non-payment of an invoice by the due date shall automatically cause all other debts owed by the Customer that are not yet at due to be payable on demand without prior notice of breach. In the event of late or incomplete payment, PROVAN reserves the right to suspend deliveries and/or performance of all works in progress, without prior notice of breach and without owing any compensation for damage, until such time as PROVAN has received full payment, where applicable plus interest and costs.
4.8 Objections to invoices shall be made known in writing within seven calendar days of receipt of the invoice. Objections to volumes, quality or performance made known after the aforementioned period of time shall be inadmissible. An objection to an invoice shall not suspend the obligation of the Customer to make payment.
4.9 If at any time PROVAN has cause to doubt the creditworthiness of the Customer due to legal action taken against the Customer, the non-payment or late payment of any invoice and/or any other imputable occurrence, PROVAN reserves the right to suspend pending works and/or deliveries and to require advance payment or other guarantees. If the Customer refuses to meet this request by PROVAN, PROVAN reserves the right unilaterally to dissolve the agreement forthwith without its owing any compensation. In such a case the Customer shall owe fixed compensation for damage equal to 30% of the total price of the order or instruction.
4.10 Except where other mandatory law provisions apply, the Customer shall be liable for all out-of-court expenses (such as debt collection costs) and court expenses (such as costs of writs of summons and fees) that PROVAN is required to incur to force the Customer to fulfil its obligations (or fulfil them on time).
4.11 Every payment received shall be deemed first to be payment of any owed interest and/or costs and subsequently payment of the oldest unpaid invoice, regardless of whether expressly otherwise stated on the payment.
4.12 Goods delivered by PROVAN shall remain its property until full payment of the invoice, including any costs, interest and compensation the damage, even if such goods have been modified or incorporated. All risks shall be for the account of the Customer. Paid advances shall be retained to compensate for any losses on resale. If the Customer processes or resells goods belonging to PROVAN, the Customer shall immediately pledge to PROVAN all receivables arising from the resale.
4.13 The drawing and/or accepting of bills of exchange or other tradable documents shall neither constitute novation nor imply deviation from these general terms and conditions.
5. Inspections and complaints
At the time of completion of the performed works or delivery of the goods the Customer shall inspect them to check whether the quality corresponds with the agreed arrangements. By accepting delivery of the ordered goods the Customer shall be deemed to have confirmed that the delivery is complete and in conformity with the offer, order confirmation and/or delivery note. Any visible defects shall be reported in writing to PROVAN without delay and in all instances within five days of delivery/completion. On expiry of this period all goods and all performed work shall be deemed accepted and any complaints received subsequently shall be inadmissible. Acceptance shall cover all visible defects, i.e. any defects that the Customer could have observed at the time of the delivery/completion or in the next five days by means of careful and serious inspection.
6.1 Where for any reason PROVAN (including its agents and employees) is liable towards the Customer, the liability shall be limited to the provisions made in this article. PROVAN shall be liable only for the unsoundness of works that it performed and/or goods that it delivered and for damage arising from performance of the agreement, if and to the extent the damage was caused by serious misconduct, intent or fraud. PROVAN shall not be liable for any other kinds of errors.
6.2 Where PROVAN is held liable for damage its liability shall be limited to not more than 100% of the relevant invoiced value, or to the part to which the liability relates.
6.3 PROVAN shall be liable only for foreseeable direct damage. PROVAN shall never be liable for indirect damage or non-pecuniary losses, including but not confined to consequential damage, lost turnover, lost sales, lost profits, lost customers, missed savings, unmarketability of goods and incurred by third parties.
6.4 The Customer shall indemnify PROVAN for any claims brought by third parties who incur damage in connection with performance of the agreement where the cause of such damage is not imputable to PROVAN.
6.5 The Customer, not PROVAN, shall be liable to the Customer’s customer (‘End- Customer’) for complete delivery of the ordered goods and shall further be responsible for correctly and completely informing the End-Customer of the usage conditions of goods supplied by PROVAN.
6.6 PROVAN shall never be liable for any damage arising from incorrect assembly, installation, connection, use or maintenance of the delivered goods.
6.7 From the time of departure from PROVAN all goods shall be shipped, delivered and stored at the risk of the Customer, regardless of the method of shipment.
7.1 Claims by the Customer under the warranty shall not be dealt with by PROVAN until after the damaged goods have been received at its registered office. Warranty claims shall subsequently be examined by PROVAN and/or by its suppliers.
7.2 Notwithstanding the statutory legal rights of consumers concerning the sale of consumer goods, any latent defects in goods delivered by PROVAN shall be subject to a warranty term of six months from the date of delivery. The warranty shall be limited to the free replacement or repair of parts acknowledged by PROVAN to be defective. At its sole discretion PROVAN shall choose between replacement and repair. Additional expenses, including but not confined to loss of usage, shipment charges and assembly costs, shall be payable by the Customer.
7.3 Any warranty shall be invalidated if the damage to the delivered goods was due to insufficient maintenance or the injudicious assembly, installation or use of the goods contrary to the directions for use and maintenance instructions, or if the Customer makes changes to or performs repairs on the delivered goods without the prior consent of PROVAN.
7.4 The Customer shall bear the burden of proof for the damage.
PROVAN shall have the right to dissolve the agreement with the Customer at any time, with immediate effect, without authorisation by the courts, without prior notice of breach and without paying any kind of compensation for damage, if (i) the Customer, despite having received written notice of breach, fails to fulfil (timely and properly) any of its obligations under the agreement (in particular payment of invoices), (ii) the Customer discontinues payments or is bankrupt or petitions for bankruptcy or for an arrangement under the Continuity of Companies Act of 31 January 2009, (iii) the Customer’s activities are liquidated or discontinued, (iv) the Customer’s assets (or some of them) are seized; (v) the Customer refuses to make advance payment and/or provide other guarantees requested by PROVAN, or (vi) PROVAN has good reasons for doubting whether the Customer will fulfil its obligations towards PROVAN. In the event of dissolution PROVAN further reserves the right to require compensation for the costs and damage that it has incurred and all debts owed by the Customer to PROVAN shall immediately become payable on demand.
9. Applicable law and forum
9.1 Unless otherwise agreed in writing, all agreements that are subject to these general terms and conditions and any other agreements arising from them shall be governed exclusively by the laws of Belgium.
9.2 Any disputes between parties regarding agreements that are subject to these general terms and conditions shall fall under the exclusive jurisdiction of the courts at Tongeren.
Version of 19 February 2015