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- 1. Scope of application
These General Terms for the provision of Products and Services (“General Terms”) apply to any and all present and future agreements, quotes, offers, orders, invoices and credit notes applicable between BREETEC INTERNATIONAL NV, with registered office at Steenweg 210, 3665 As, Belgium and registered in the Crossroads Bank for Enterprises under No. 0439.361.597 (RLE Antwerp, section Tongeren), BREETEC INDUSTRIAL SERVICES BV, with registered office at Steenweg 210, 3665 As, Belgium and registered in the Crossroads Bank for Enterprises under No. 0478.042.823 (RLE Antwerp, section Tongeren) or BREETEC VALVE SERVICES BV, with registered office at Steenweg 210, 3665 As, Belgium and registered in the Crossroads Bank for Enterprises under No. 0720.861.240 (RLE Antwerp, section Tongeren), depending on which entity enters into a contractual relationship with the Client (as defined below) hereinafter referred to as “Seller”) and any natural person or legal entity (whether or not governed by public law) (hereinafter referred to as the ‘Client’), unless explicitly agreed otherwise in writing. These General Terms form an integral part of the agreement between the parties. By accepting any offer from or placing any order with the Seller for the purchase of products and/or the performance of services, the Client acknowledges and confirms its prior perusal and acceptance of these General Terms and relinquishes application of its own terms and conditions, however worded. The Seller reserves the right to change its General Terms, subject to prior notification to the Client. Material deviations from these General Terms shall only be valid with the Seller's express written consent.
2. Conclusion and modification of the agreement
2.1. All offers and quotes by the Seller, regardless of their form, are free of obligation, unless expressly stated otherwise in writing. The Client guarantees the accuracy and completeness of the information provided to the Seller, upon which the Seller has based its offer relating to the goods and/or services. Only written confirmation (e-mail is considered as written communication) by the Seller constitutes an acceptance of the order and the conclusion of the agreement.
2.2. Examples or samples of the products give, at best, an approximate image of the product and are never binding. Furthermore, all indications in offers, quotations or agreements, as well as in the annexes thereto, such as images, drawings, weights, dimensions, capacities, pressure and other data, are only approximate. The Client acknowledges that most of the products are custom made. Minor deviations in the product, in accordance with the applicable standards and regulations for the relevant product, are consequently not at the Seller's expense and risk.
2.3. The products to be supplied by the Seller shall comply with the technical requirements or standards set by applicable legislation. Other specific (technical) requirements set by the Client, must be made in writing by the Client and must always be confirmed and accepted in writing by the Seller.
2.4. Obvious errors or mistakes in the Seller’s offers or quotes release it from its performance obligation and/or any obligation to pay damages arising therefrom, even after formation of the agreement.
2.5. The Seller reserves the right to suspend the delivery of orders if the Client’s account with the Seller shows a negative balance and in case of the Client’s apparent state of financial distress or insolvency.
2.6. All agreements are entered into subject to sufficient stock. If fewer products or raw materials are available (outside of the Seller’s control), the Seller shall be entitled to reduce the quantities it sells accordingly. By supplying the quantities thus reduced, the Seller fulfils its obligation to deliver.
2.7. Any request to modify or supplement the order (additional or less work) must be made in writing by the Client and must always be confirmed and accepted in writing by the Seller. The following are (non-exhaustive) cases of additional or less work: (1) in the event of modification of the specifications, (2) if the information provided by the Client does not correspond to reality (e.g. other dimensions). If the Seller's order confirmation contains any change or addition or differs in any way from the Client's order, it shall be binding upon the Client unless it notifies the Seller about its disagreement within 8 calendar days after receiving the order confirmation.
2.8. At written request, the Client will receive the documentation and product specification relating to the ordered goods. All specifications, know-how, formulas, concepts, designs and product concepts, as well as all information received from the Seller (including, without limitation, prices, payment conditions and terms of the agreement) are confidential and stay property of the Seller (or its supplier). They may only be used by the Client in as far as necessary for the use of the goods. Reproductions or use of this information for other purposes is punished by law and will be prosecuted.
3. Provision of services
3.1. The Client is obligated to have the valves inspected and maintained by the Seller (or another qualified engineer with the necessary knowledge, skill and experience) at least every two years, and to keep the supporting written evidence that such inspection and maintenance was performed in a timely manner.
3.2. Upon the Client requesting the Seller in writing to perform services, the Seller shall provide the Client with a quote that includes an estimate of the requested services, the required spare parts, other materials required (e.g. crane) and a price estimate. After the Client’s acceptance of the quote within the specified period, the Seller shall carry out requested maintenance services on-site as the Client requests or as the Seller deems necessary. It is the responsibility of the Client to request such maintenance services in a timely manner.
3.3. The Client is responsible to provide to the Seller, in a timely and structured manner, all documentation and information, which the Seller indicates is necessary or useful for the performance of the services and/or which the Client should reasonably know is necessary or useful for the delivery of the services.
3.4. All services will be carried out by duly qualified employees, engineers, or subcontractors of the Seller. The Client acknowledges and agrees that the Seller has the right to engage sub-contractors for the provision of any and all of the services, without notice to or approval from the Client, and the Seller has full discretion in deciding which individual will perform the services. The Seller reserves the right to replace at any time, the persons designated for the performance of the services by other sufficiently qualified and suitable persons.
3.5. The Client warrants that it complies with all applicable health and safety regulations and operates a safety policy to minimise the risk of accidents, so that the Seller can provide its services in a secure manner.
3.6. The Seller shall perform the services in accordance with industry standards and in good faith.
4. Prices
4.1. Unless indicated otherwise, all prices are in euro and exclude VAT. Unless explicitly stated otherwise in writing, all prices exclude transport or travel costs (as applicable) as well as insurance, costs for rent of hoisting cranes, forklift truck (ect.), costs for securing the work area, packaging, installation and assembly costs. Any special additional costs in relation with the import and/or clearance of goods to be delivered by the Seller to the Client and any other government levies are excluded from the price and shall be borne by the Client.
4.2. The amounts presented by the Seller in the (order) confirmation are based on the prices, exchange rates, wages, taxes and other price-related factors that applied at the time of the (order) confirmation. If any of said price-related factors should change after the (order) confirmation has been issued, the Seller is entitled to adjust the agreed price accordingly. The Seller will inform the Client thereof without delay. If, pursuant to the present article, a price increase is implemented and such increase exceeds 10% of the total agreed amount, the Client is entitled to terminate the agreement in writing within eight calendar days after it is or could have been aware of said price increase.
4.3. The Seller reserves the right to adjust prices for the performance of the services based on objective factors including raw material prices, material costs and labour costs. When the price adjustments are relating to increasing labour costs, the new price will be calculated as follows:
P = (P0 x 0.20) + (P0 x 0.80 x S1)
P = New rate
P0 = Last year’s rate
S1 = New reference wage rates Agoria according to PC111, total of last year’s indexations. These are applied form the month following an index adjustment within PC111.
5. Payment
5.1. Unless agreed otherwise all invoices issued by the Seller shall be payable to its registered office within thirty (30) calendar days following the invoice date. Under no circumstances shall the Client be entitled to offset any amounts due by the Seller against any sum charged by the Seller.
5.2. The Seller shall have the right, at all times, either to deliver and invoice the complete delivery or to invoice goods delivered in instalments per separate delivery. The Seller shall be entitled to invoice at any time, including by way of advance invoices. If advance payment is refused, the Seller is entitled to cancel the Agreement, in which case the Client shall be liable for any damage resulting therefrom.
5.3. Invoices that have not been disputed by registered mail within eight (8) calendar days following their transmission shall be deemed to have been accepted unreservedly.
5.4. Payment shall be made by transfer into the account number indicated on the invoice under mention of the reference number.
5.5. The Seller is entitled to suspend the delivery of any goods held by it for the Client in relation to the performance of the agreed works until all payments owed by the Client to the Seller have been made in full.
In the event of non-payment on the due date (see article 4.1) all amounts owed by the Client become due and payable, regardless of any payment conditions agreed earlier. In the event of late payment, even partial payment, the Client shall automatically and without the need for a letter of formal notice owe interest on the outstanding invoice amount in accordance with the Law of 2 August 2002 on combating late payment in commercial transactions, as from the due date of the invoice. The interest is calculated from day to day.
5.6. In the event of late payment, the Client shall also owe a fixed compensation of 10% of the outstanding invoice amount, with a minimum of €250.00, to cover, among other things, the recovery costs incurred by the Seller.
5.7. Late payment, incomplete payment or non-payment of any single invoice due shall render any other invoice that is not yet due for payment, immediately due and payable.
6. Termination
6.1. The Client’s failure to duly and/or punctually perform any of its obligations under this agreement shall entitle the Seller, without any obligation to pay compensation and without prejudice to any other rights it may have, to terminate the agreement in part or in full by means of written notification to the Client and/or to demand immediate payment in full of any outstanding amounts and/or to invoke its retention right. If the agreement is terminated by the Seller pursuant to this article, the Client shall pay the Seller on demand (and within fourteen days of such demand) 50% of the price of the order or agreement as liquidated damages. The parties confirm that this sum represents a genuine pre-estimate of the Seller’s loss. This paragraph is without prejudice to the Seller's other remedies and its right to prove and claim any higher damages.
6.2. The Seller is entitled to terminate the agreement with immediate effect, without any obligation to pay compensation and without prejudice to any rights it may have, in the event that the Client applies for a moratorium or bankruptcy or has such application filed against it, as well as in the event that its assets are being seized in part or in full. In that case any and all invoiced amounts shall become due and payable immediately.
7. Force majeure
7.1. Except in the case of mandatory statutory provisions or provisions relating to public order or intent, the Seller shall not be liable for any breach resulting from force majeure. The Seller’s obligations shall be suspended during the entire period of force majeure. If the period of force majeure and hence the Seller’s non-compliance continues for more than three months, both parties shall be entitled to terminate the agreement without judicial intervention and without any obligation to pay any damages.
7.2. The term 'force majeure' as referred to in this article shall in any case be understood to mean unforeseen circumstances, also of an economic nature, arising through no fault or action of the Seller or its suppliers or subcontractors, including, but not limited to, natural disasters, wars, hostilities, attacks, whether in Belgium or in any other country where any branches of the Seller or its subcontractors are established, illness, technical failure of machines or systems, lack of personnel, fire or flood, epidemic, pandemic, government order, serious business interruptions, cyber-attacks, forced cuts in production, strikes and lockouts, both at the Seller's premises and at its suppliers, delays in transport or delayed or incorrect delivery of goods or materials, such as energy, raw materials or parts, by third parties including the Seller's suppliers.
7.3. If the Seller has already partially fulfilled its obligations when force majeure occurs, or can only partially fulfil its obligations, it shall be entitled to invoice the part already delivered or the part deliverable separately and the Client shall be obliged to pay this invoice as if it were a separate agreement.
8. Hardship
8.1. If, during the term of the agreement, the (continued) performance thereof should become excessively onerous for the Seller, due to an event beyond its reasonable control (such as but not limited to extreme price increases, scarcity of raw materials and spare parts, accidents, etc.), the parties are bound, within a reasonable time after invocation of this clause by the Seller, to negotiate alternative contractual terms which reasonably allow to overcome the consequences of such event. For the avoidance of doubt, this clause also applies on accepted orders. In the event the parties are unable to agree on such alternative contractual terms, the Seller is entitled to terminate the agreement and to cancel accepted orders, effective immediately, without court intervention and without any obligation to pay compensation, by sending a registered letter to the Client.
9. Order cancellation
9.1. Accepted orders are binding upon both parties. In case the Client nonetheless cancels an accepted order for non-custom made goods or services, it must submit a written request to the Seller no later than thirty (30) days prior to the cancellation. The Seller may refuse the request for cancellation. In the event the cancelation request is refused, the Client is obligated to accept the order and pay the price. If the Seller agrees in writing to the cancellation request, the Seller shall be entitled to compensation estimated at a minimum of 30% of the price (without deduction of any advance payments already made), without prejudice to the Seller's right to prove any higher damage or to demand performance of the agreement. In case the Client cancels an accepted order of custom-made goods or services, it shall be held to pay the full purchase price and all additional costs and damages. This paragraph is without prejudice to Seller's other remedies and its right to prove and claim any higher damages. From the date of the letter of formal notice until the payment of the damage, interest on arrears shall be due on the amount of the damages at a rate of 10%.
9.2. Any advances paid shall in any event remain vested in the Seller and shall not be refunded.
10. Delivery
10.1. Unless agreed otherwise in writing, delivery shall occur according to the applicable ICC INCOTERM (2020) ‘Ex Works’ (address as indicated on the order confirmation). If the Client refuses to take receipt of the order at the agreed moment, makes such receipt impossible or unreasonably difficult or fails to provide information or instructions required for the delivery, the Seller is entitled to store the goods at the Client’s risk and expense, without prejudice to the Seller’s right to terminate the agreement.Goods shall be deemed to have been delivered from the moment the Seller has informed the Client that the goods – whether or not to be assembled in full or in part – are ready for collection from the Seller or a third party or for shipment at the order of the Client. From the moment of delivery, all risks associated with the delivered goods transfer to the Client.
10.2. If, notwithstanding Article 9.1, it is expressly agreed that the Seller shall arrange the transport of the goods, both the costs and the risk of loss or damage during transport shall be borne by the Client, unless explicitly stipulated otherwise. In that case, the Client is also responsible for unloading the goods, unless stated otherwise in writing.
10.3. If the parties agree that the Seller is responsible for unloading the goods or loading, then the Client will ensure that the place of delivery is easily accessible and that the necessary people are present during delivery to provide any information required or useful for the Seller to unload the goods. In any case, the Seller can be held only to deliver goods at ground level. Failure to meet this obligation entitles the Seller to refuse making the delivery. In such cases, the Seller will be entitled to compensation for all costs incurred, including shipping costs and labour, irrespective of Article 9.1.
10.4. In its offers, quotes, agreements or otherwise, the Seller shall provide delivery terms to the best of its ability and such terms will be adhered to as much as possible, taking into account the availability of the goods and/or services involved. The Client acknowledges that, unless explicitly agreed otherwise, the indicated delivery term for goods and/or services is purely indicative. Non-compliance on the part of the Seller with the indicative term shall under no circumstances give rise to the dissolution of the agreement or any right to damages.
10.5. The Client is responsible for obtaining the required permits and insurance policies and to provide the Seller with a copy of such permits and insurance policies prior to the start of the provision of the services.
10.6. Partial deliveries shall be allowed at all times. The Client’s delay in payment of agreed advance payments to the sales price may result in corresponding delay of the delivery.
10.7. If the term or location of delivery or the circumstances for delivery change at the request of the Client, or if the Client provides incorrect information to that effect, the Seller shall, as the case may be, be entitled to payment of the corresponding additional costs and fees.
11. Guarantee
11.1. If the Seller (or the Seller's supplier) provides a guarantee to the Client with regard to the services or products delivered or to be delivered by it, it shall explicitly inform the Client of this in writing. In the absence of such explicit written notification the Client cannot invoke any guarantee, however without prejudice to its statutory rights resulting from mandatory statutory provisions. In respect of all products (including spare parts) the Seller purchases from a third party manufacturer or supplier, the Client acknowledges and agrees that any guarantees or warranties shall be limited to the guarantees or warranties provided by such third party manufacturer or supplier.
11.2. In case of a valid guarantee claim by the Client, the Seller is entitled at its discretion to either repair or exchange the delivered goods, unless this has become demonstrably futile for the Client in the meantime. If the Seller notifies the Client that it will proceed to repair the goods, the Client shall, at its own cost and risk, put the delivered goods at the disposal of the Seller.
11.3. All guarantee obligations of the Seller shall cease to apply if the defects or imperfections in the supplied goods as put forward by the Client are the result of (i) any incorrect, careless or incompetent use or management of the goods by the Client, their representatives or third parties; (ii) a modification of the delivered goods to which the Seller did not agree by the Client, their representatives or third parties; (iii) lack of (timely) maintenance of the products, or (iv) any external causes such as, but not limited to substances such as acid, fire or water damage.
12. Liability
12.1. The Seller undertakes to perform the contract to the best of its ability and its conformity with the rules of good practice.
12.2. The Seller cannot be held liable for damages due to late, incorrect and/or incomplete information or data as communicated by the Client and for the consequences of the use and any consequences incurred by the Client, a third party or their goods from the delivered, installed and/or shipped products. The sale is and remains made on the order and at the risk of the Client, who is liable for any accidents, infringements, correct storage, timely maintenance, etc. The Client shall also be liable for and shall, as the case may be, indemnify the Seller against any damage (including fire) caused by the products.
12.3. The employees, engineers and subcontractors cannot be held directly liable for any errors occurring in the performance of the agreement, unless the damage caused is the result of harm to a person’s physical or psychological integrity, or is the result of intent or deliberate misconduct.
12.4. The Seller does not guarantee the quality of its products in the event of abnormal or incorrect use, maintenance not carried out on time or carried out incorrectly, irregular or lack of inspection, modification of the goods, poor storage conditions, (dis)assembly or repair by the Client.
12.5. Insofar as permitted by applicable law, the Seller is not responsible for indirect, incidental or consequential damage (including: injuries, damage to property, financial loss, loss of profit, staff costs, damage to third parties, loss of revenue), damage to other goods, machinery or installations of the Client. In this respect the Client waives any right of recourse vis-à-vis the Seller and/or its representatives. Furthermore, the Seller’s maximum liability for incidental or consequential damage shall never exceed the price paid for the products and/or services in question.
13. Complaints
13.1. The Client is obligated to inspect the products and result of the services or have them inspected immediately upon delivery. This means that the Client must thoroughly and accurately check (or have checked) whether the products and services comply with the agreement in all respects, in particular whether the correct products have been delivered, the quantity of the products is correct (quantity, number, weight), the (non-) conformity or the condition of the goods delivered or the correct delivery of the services . Under penalty of expiry of the complaint, such complaints must be reported to the Seller in writing immediately after this inspection and at the latest within 24 hours after receipt of the goods, accurately stating the nature of the shortcoming.
13.2. Complaints regarding hidden defects (also those covered by the guarantee of the manufacturer or supplier, which guarantee was negotiated directly with the Client), which manifest themselves within six months after the delivery of the goods, must be reported to the Seller by means of a motivated registered letter at the latest eight (8) calendar days after discovery of the defect or after the defect should reasonably have been discovered. Any complaint after this period is in any case inadmissible. The use or possible resale of the goods shall cancel any liability the Seller may have. No complaints or disputes of any kind shall ever entitle the Client to suspend performance of its obligations towards the Seller or cancel the complete order or delivery. In the event of a valid complaint, the Seller’s maximum liability shall never exceed the price of the product.
13.3. Complaints regarding the services carried out by the Seller, must be reported to the Seller by means of a registered letter at the latest fourteen (14) calendar days of completion of the work. If the Seller has to engage an expert to examine the merits of the complaint, the Client shall bear the costs of such examination if it appears that the complaint is unfounded.
14. Intellectual property rights
14.1. All intellectual, industrial and other (property) rights (including but not limited to all patents, rights to inventions, utility models, copyrights and related rights, trademarks, service marks, rights in designs, etc.) related to the services provided, as well as to the products designed, developed and/or made available under the agreement vest exclusively with the Seller (and/or the manufacturer or supplier).
15. Retention of title
15.1. All the goods delivered or to be delivered by the Seller shall remain the Seller’s property under all circumstances as long as the Client has not settled any claim brought by the Seller, such as, in any case, a claim to pay the price of the goods.
15.2. The Client has an obligation to store the goods delivered under retention of title with care as well as recognisable as property of the Seller.
15.3. So long as title has not transferred to it, the Client is not allowed to pledge to third parties, encumber otherwise or transfer in whole or in part the goods delivered under retention of title, except insofar as such transfer occurs in connection with Client’s regular operational activities.
15.4. Whenever circumstances so require, for instance when the Client is declared bankrupt or when a third party intends to seize or has seized the goods, the Client will inform such third parties (e.g. a receiver or creditors) by registered letter of the Seller’s right of ownership to the goods. The Client shall inform the Seller of any such instance by registered letter without delay.
15.5. If the Client fails to meet its payment obligations to the Seller or if the Seller has valid reason to fear that the Client will fail to meet such obligations, the Seller shall be entitled to take back the goods delivered under retention of title. The Client shall ensure that – if necessary on behalf of a third party (buyer) or custodian – at its first request, the Seller will be told where the goods are located and that at the Seller’s request the goods will be returned to the Seller at the Client’s cost and risk. Insofar as necessary, the Seller is hereby granted an irrevocable mandate to repossess the goods as well as a mandate to enter the necessary premises to that effect. After repossession, the Client will receive the market value of the goods as compensation, which will never exceed the original price agreed between the Client and the Seller and subject to deduction of any costs incurred by the Seller in connection with the repossession.
16. Severability
16.1. Insofar as possible the provisions of these General Terms and of the agreement shall be construed in a way that is valid and enforceable according to applicable law.
16.2. The (partial) nullity, unenforceability, non-reliance or impracticability of either provision of these General Terms or of the agreement does not affect the application or validity of the remaining provisions.
16.3. Parties shall endeavour to replace any provision that is deemed to be null and void, unenforceable, non-reliant or impracticable by a provision that reflects the parties’ intentions.
17. Applicable law and competent jurisdiction
17.1. All the agreements entered into with the Seller and any disputes associated therewith shall be governed exclusively by Belgian law under exclusion of the Vienna Convention.
17.2. Any disputes arising from the agreement or from these General Terms, which form an integral part thereof, shall be decided exclusively by the competent courts of the judicial district of Antwerp, section Hasselt.
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