1. Object
1.1 For the purposes of these general terms and conditions, the “Seller” shall mean: Option Tape Specialties NV, a company under Belgian law, with its registered office located in Belgium – 9140 Temse, Frankrijkstraat 8, with company number 0860.464.432. For the purposes of these general terms and conditions, the “Buyer” shall mean: the professional buyer of Products (as defined below) from the Seller in accordance with these general terms and conditions.
1.2 Without prejudice to the applicability of any special conditions of the Seller, which shall take precedence over these general terms and conditions, these general terms and conditions shall apply to every service, provision of services as well as to every sale and delivery of goods (hereinafter jointly referred to as the “Products”) by the Seller to the Buyer under any agreement or arrangement between the Seller and the Buyer (“Agreement”).
1.3 Unless otherwise agreed between the Seller and the Buyer, these general terms and conditions shall apply to the Agreement. They shall prevail by operation of law over the purchase conditions of the Buyer. The possible nullity of one or more provisions of these general terms and conditions shall not affect the applicability of all other clauses.
1.4 In the event of a conflict between the Agreement and these general terms and conditions, these general terms and conditions shall prevail, unless the offer expressly deviates from the general terms and conditions.
1.5 The Agreement is concluded immediately by the transmission by the Buyer of the signed offer to the Seller or of any other order confirmation based on the offer from the Seller, to which these general terms and conditions apply.
2. Prices and Payment Terms
2.1 All prices are exclusive of VAT, taxes, packaging, travel and transport costs, unless otherwise specified.
2.2 All quotations and price lists of the Seller are without obligation and time-limited. The prices of the Products are valid according to the price lists of those Products in force at the time of the order of the Products by the Buyer.
2.3 All invoices are payable in cash at the registered office of the Seller. Payment must be made within the term stated on the order confirmation. In the absence of such indication, payment must be made in cash within 30 days from the invoice date. The Products will be invoiced immediately from the date the Products leave the Seller’s premises.
2.4 Deliveries of Products are made carriage paid if a certain minimum order amount (excl. VAT) has been reached; if not, transport costs will be charged. The Seller reserves the right not to deliver Products as long as any amounts due under any agreement with the Buyer have not been (fully) paid, including any late payment interest and fixed damages as determined below.
2.5 Any amount that remains unpaid on the due date shall, without prior notice of default and automatically, from the invoice date, be increased with a conventional interest equal to the interest rate as defined in Article 5 of the Late Payment Act + 3%, and which shall be at least 12%, as well as with a fixed compensation for collection costs, excluding judicial collection costs, of 10%, with a minimum of EUR 50.00 per invoice. Any protest of the Seller’s invoices must be notified in writing to the Seller within a period of 8 days after receipt of the invoice.
2.6 Under no circumstances does the Buyer have the right to set off any amounts (allegedly) owed by the Seller to the Buyer against any amounts (allegedly) owed by the Buyer to the Seller.
3. Delivery of Products
3.1 The execution or delivery periods for Products indicated by the Seller are purely indicative. Exceeding the stated execution or delivery period shall under no circumstances result in the termination of the Agreement. Any delay in the execution or delivery that the Seller becomes aware of will, however, be communicated to the Buyer as soon as possible. Changes to the orders will automatically result in the lapse of the presumed execution or delivery periods initially foreseen.
3.2 Delivery of the Products takes place at the Seller’s premises at the moment the Products are made available there to the Buyer. The Products are transported at the expense and risk of the Buyer.
3.3 The Buyer must, in general, ensure that all necessary precautions are taken at the place of delivery and that all conditions are met so that the delivery can take place under good circumstances. Any damage caused due to failure to meet these conditions shall be borne exclusively by the Buyer.
3.4 The Buyer shall inspect the Products immediately upon delivery and shall notify the Seller in writing of any visible defects within 7 days of delivery, and shall submit to the Seller the supporting documents of such defects. The Seller shall then examine the Buyer’s supporting documents in accordance with its internal procedure and inform the Buyer without delay about the further handling procedure. Any visible defects not notified in writing to the Seller within the aforementioned period shall be deemed to have been accepted by the Buyer.
3.5 The Seller has the right to suspend the delivery of the Products if any amounts due by the Buyer in connection with the relevant or other order confirmations have not been fully paid, until the moment of full payment of all outstanding amounts. The Seller has the same right of suspension if, for any reason, the Seller doubts the creditworthiness of the Buyer and/or if it appears that the Buyer is reasonably not (sufficiently) creditworthy, taking into account the order placed by the Buyer as recorded in the order confirmation.
4. Cancellation of the Order
After the Seller has sent any order confirmation to the Buyer based on the Seller’s offer, whereby the Agreement is concluded, the Buyer no longer has the possibility to cancel the order.
5. Risk
5.1 All risks, of whatever nature, shall be borne by the Buyer from the moment the Products leave the Seller’s premises.
5.2 If the Products cannot leave the Seller’s premises due to any cause attributable to the Buyer, the risk shall transfer to the Buyer on the scheduled date of departure of the Products from the Seller’s premises, as communicated to the Buyer.
6. Retention of Title
The Products remain the property of the Seller until they have been paid for in full. If the Buyer, for any reason, still owes any late payment interest and/or fixed damages to the Seller, ownership of the Products shall not pass until such late payment interest and/or fixed damages have been fully paid by the Buyer. In case of non-payment, the Buyer shall, upon first request by the Seller, immediately return the Products to the Seller in good condition.
7. Liability
7.1 The Agreement constitutes obligations of means on the part of the Seller. The Seller is not liable for defects in the Products caused by normal wear and tear, abnormal or unsuitable storage or usage conditions, or any act, negligence or fault of the Buyer or any third party.
7.2 The Agreement constitutes obligations of means on the part of the Seller. The total liability of the Seller towards the Buyer is limited to the price (excl. VAT) of the Products that gave rise to the damage, as invoiced to the Dealer. Furthermore, the Seller shall never be liable for indirect damage. This double limitation of liability does not apply in cases of intent or fraud. The Buyer waives all non-contractual claims against the Seller and its auxiliaries, except:
- in the case of fraud;
- in the case of an infringement of physical or psychological integrity or of a fault committed with the intent to cause harm.
7.3 The Seller is not liable for differences in colour, shape, or weight of the Products compared to their description given in the catalogues or on the Seller’s website. Furthermore, the Seller is not liable for deviations in the structure or material of the Products. The Seller is also not liable for defects in the Products resulting from poor maintenance and/or use of the Products.
7.4 The Buyer is deemed to have thoroughly taken note of the manual(s) that may be delivered with the Products. The Buyer accepts that certain manual(s) are not always written in English. The Buyer confirms having been fully informed by the Seller and has the right, upon simple written request, to receive additional written clarifications.
8. Force Majeure
The Seller shall not be liable towards the Buyer for any loss or damage suffered by the Buyer that is directly or indirectly the result of the execution of the Agreement being prevented, hindered, delayed, withdrawn or rendered economically unfeasible due to circumstances or events beyond the reasonable control of the Seller, including but not limited to electronic intrusion in any form, strike, lockout, labour disputes, breakdown of installations or machines, flooding, drought, extreme weather conditions, mechanical defects, third-party software, difficulty or increased cost in obtaining workers, materials or transport, strikes or delays at a supplier of the Seller or refusal to deliver by a supplier of the Seller, malfunctions or problems with public utilities (including failure of electricity, telecommunications or internet), regardless of whether such circumstances could have been foreseen or prevented by the Seller.
9. Termination
9.1 The Seller has the right to terminate the Agreement by registered letter with immediate effect and automatically, if the Buyer, after first being given notice of default by the Seller, fails to comply with one or more of the essential obligations of the Agreement or these general terms and conditions, or if any amounts owed by the Buyer in connection with this or previous orders to the Seller have not been fully paid, without prejudice to any other rights of the Seller, including its right to claim damages. In case of judicial or extrajudicial dissolution to the detriment of the Buyer or termination of the agreement by the Buyer, the Buyer owes the Seller fixed damages amounting to 25% of the agreed price, without prejudice to the Seller’s right to claim higher damages.
9.2 If the Buyer is declared bankrupt, applies for suspension of payments, is dissolved or reaches judicial or extrajudicial settlements with creditors, the Seller has the right to terminate the Agreement with immediate effect or to demand full advance payment or other guarantees from the Buyer for the delivery.
10. Intellectual Property Rights
The Seller is and remains the sole owner of all intellectual property rights (trademark rights, trade name rights, copyrights, patent rights, etc.) as well as of the know-how relating to the Products and the name “HPX” or “Option Tape Specialties”. The distribution of information relating to the Seller and/or the Products shall under no circumstances imply the transfer of any rights from the Seller to the Buyer, and no license or other right relating to intellectual property rights shall be deemed to have been granted. Except with prior written permission from the Seller, the Buyer shall refrain from any use of trademarks, logos, domain names, and other intellectual property for which use is exclusively reserved to the Seller. The Seller reserves the right to claim damages from the Buyer for any breach of this provision, with a fixed minimum of EUR 2,500 per established infringement, without prejudice to all other rights the Seller may assert against the Buyer in this regard.
11. Final Provisions
11.1 Communication between the Seller and the Buyer may take place electronically, unless the law provides otherwise.
11.2 No failure or neglect by either party to enforce or comply with the provisions or conditions of the Agreement shall be deemed a waiver of such provisions or conditions.
11.3 The Agreement is exclusively governed by and interpreted in accordance with Belgian law. Only the courts of the judicial district of Gent, division Dendermonde, have jurisdiction to hear any dispute relating to the Agreement. The Seller and the Buyer agree that the Vienna Convention of 11 April 1980 on the International Sale of Goods does not apply to their current and future relations.
11.4 The data and personal data provided by the Buyer to the Seller are included in a data file, which is used by the Seller, or by third parties engaged by the Seller for this purpose, for the Seller’s administrative purposes as well as for informing the Buyer about current or future services, goods, promotions, and similar matters of the Seller. The Buyer’s personal data (including those of the Buyer’s contact persons) are processed by the Seller as data controller. The Buyer, as a natural person, has the right to object free of charge to the use of their personal data for direct marketing. If they wish to exercise these rights, they must send a request to that effect to the Seller by regular post (“Option Tape Specialties”, with its office at B-9140 Temse, Frankrijkstraat 8) or by email ([email protected]).
11.5 The drawing and/or acceptance of bills of exchange or other negotiable instruments shall not constitute novation of debt and shall not imply any deviation from these general terms and conditions. Any costs related to unpaid bills of exchange as well as other collection costs, of whatever nature, shall be separately charged to the Buyer.
11.6 If any provision of the Agreement or part of such provision is declared invalid, this shall not affect the remaining provisions of the Agreement or the remaining part of that provision. In such case, both parties shall replace the invalidated provision(s), or parts thereof, with new provision(s) that most closely reflect the original intention of the parties and of the Agreement.
