Terms of sale
1.1 The following conditions exclusively govern all agreements of purchase and sale and leases in the broadest sense, including all agreements or clauses therein concerning transfer of ownership.
1.2 These conditions similarly apply, mutatis mutandis as far as necessary, to all maintenance, installation and repair work (or agreements or conditions therein concerning such work) and other services rendered in the broadest sense and including the supervision of such works and the persons undertaking them.
1.3 Divergent conditions apply only if the purchaser and vendor have agreed them in writing and then only to the agreement in respect of which they are made; the following conditions otherwise continue to apply.
1.4 Where applicable, the term machines as used in these conditions of sale is understood to include plant, apparatus, parts, accessories and tools and goods and other products connected therewith in the broadest sense.
1.5 Under leases, the terms vendor and purchaser in the following articles similarly mean lessor and lessee and, in the case of sale, also lettings and insofar as these conditions fail to provide, our general conditions of hire that form part of these general conditions shall apply.
2.1 None of our offers or quotations is binding unless expressly stated otherwise in writing. Every offer or quotation from us is based on the assumption that we can execute the order under normal circumstances and during scheduled working hours. An agreement is created only if and insofar as we accept an order from the principal in writing or if we proceed to execute an order. The effective date of an agreement is the date of dispatch of our written confirmation of the order or the first day of actual execution of the order by ourselves.
2.2 If an order has not been accepted in writing beforehand, e.g. on sale of stock in store, the purchase agreement is created as soon as the vendor wholly or partially complies with a request for delivery from the purchaser, or through the vendor sending an invoice to a purchaser who has requested delivery.
2.3 The vendor is not liable for errors or divergence from illustrations, drawings and stated measures and weights, or any other specifications appearing in price lists or advertising material and in offers and/or confirmations of order, unless they seriously affect the capacity or proper operation of the machines.
2.4 Illustrations, drawings and the like provided by the vendor remain its property and may be copied or reproduced or placed at the disposal of third parties only with its express consent.
2.5 Should no order be forthcoming, Dosanova reserves its right to charge for the design, drawing - calculation - and/or demonstration costs or any part thereof, calculated in consultation with the applicant in accordance with custom and equity.
3.1 Unless agreed otherwise in writing, the vendor will not entertain complaints concerning used machines supplied and the vendor is not liable for them in any respect whatever. The provisions of Paragraphs 2 and 3 below therefore relate exclusively to new goods.
3.2 Notwithstanding the provisions of Article 6, the vendor is not obliged to entertain complaints not submitted to it in writing within fourteen days following the date of its invoice, or within eight days following receipt of the goods.
3.3 A complaint concerning goods supplied will not affect the rights and obligations of the parties concerning goods supplied previously or still to be supplied, even if such goods have been or will be supplied in execution of the same agreement.
4.1 The goods will be deemed to have been finally and unconditionally accepted by the purchaser if it is agreed that the purchaser will examine or inspect the goods at the premises of the vendor or at those of the purchaser elsewhere or will have them examined or inspected and it has failed to make use of this right within ten working days of being notified of its opportunity to do so or it has effectively been offered the opportunity.
4.2 Examination or inspection expenses will be borne by the purchaser.
5. ASSEMBLY AND COMMISSIONING
5.1 The purchase prices do not include the cost of assembly and commissioning.
5.2 In the event of its having undertaken to assemble and start up the machines sold and supplied, the vendor will accept liability only with regard to the operation of such machines if: A. assembly and commissioning are undertaken in accordance with its instructions, in which case it is entitled to entrust supervision of the work to a fitter. The purchaser will bear the fitter s travel expenses and cost of board and lodging etc.
B The circumstances (in the broadest sense) at the site where assembly and commissioning are to take place have no detrimental effect and foundations, walls, partitions and the like on and/or against which the machines are to be mounted or attached for commencing the works have been properly installed, executed and/or prepared. The purchaser is responsible for undertaking all additional works. The purchaser will also provide the necessary assistance at its own expense in the form of labor and ancillary materials, as well as a parking space near the workplace.
5.3 The purchaser will bear any costs resulting from the inability of the fitter to proceed regularly with assembly and commissioning owing to circumstances beyond the vendor’s control.
Article 6 applies correspondingly.
6. GUARANTEE AND LIABILITY
6.1 The seller guarantees 1 year warranty on the delivered machines in case of construction defects. Wear-sensitive parts, seals, sensors, electronics, non-return valves, etc... are never covered by the warranty. If construction faults are present, the parts will be repaired or replaced. Transportation costs and working hours will be charged additionally for the buyer.
6.2 The vendor’s guarantee obligations lapse immediately if during the guarantee period the purchaser undertakes any repairs or changes, or has them undertaken by others, without the vendor s prior consent, or fails to discharge its payment obligations. The purchaser is not entitled to withhold payment on the grounds that the vendor has not yet discharged its guarantee obligation or has not done so fully.
6.3 The guarantee applies instead of any other liability of the vendor for failure of performance, improper performance or late performance. Liability in respect of failure to discharge the guarantee obligations is further limited to the cost of repair or replacement by third parties with which the purchaser will not proceed, however, until express notice of default has been served on the vendor and the vendor has been allowed a reasonable period in which to discharge its guarantee obligations.
6.4 Without prejudice to the provisions of Paragraph 6.3 above, the vendor will in no event be liable for any indirect loss such as that following cessation of business, delay, interruption or any other operating loss in any respect or guise or of any nature whatever, or for any direct or indirect loss caused to or by or through the operation or nonoperation and/or malfunctioning to goods produced or processed by them or caused directly or indirectly by personnel in its service to any goods and any persons whatsoever.
6.5 Finally, without prejudice to the provisions of Paragraphs 6.3 and 6.4 above, any liability of the vendor of any kind whatever, including liability by virtue of these conditions, will in each case be limited to not more than the amount of the purchase price for the individual item concerned already paid by the purchaser in respect of his agreement.
6.6 In the event of any third party claim against the vendor in respect of or in connection with delivery (including late, defective or improper delivery) or operation of the goods, the limitation of the vendor s liability will apply correspondingly as described in Paragraphs 6.4 and 6.5 The purchaser will indemnify the vendor against any further liability towards third parties.
6.7 The vendor will provide the purchaser, on delivery of the machine, as far as necessary and/or requested, with instructions, directives and/or directions regarding its use and the purposes for which it may be used, to which the purchaser is obliged to adhere. Unless advised otherwise in writing by the purchaser, the vendor may assume that the purchaser and its personnel or the persons that the purchaser directly or indirectly permits to work or remain near or with the machine are adequately familiar with the language in which the instructions or directions are couched to take note thereof and act accordingly, provided such language is Dutch. The vendor is prepared as far as possible to have such instructions and directions provided in other languages on written request. The purchaser undertakes to bear the ensuing cost.
6.8 A guarantee application can be entertained only if the application has been confirmed by Dosanova.
6.9 The use of corrosive or aggressive products will void the warranty on all products supplied.
An alteration or cancellation of a purchase agreement requires the vendor s consent in writing. The purchaser undertakes to make good to the vendor all loss, including loss of profit and all cost resulting from the change or cancellation should it wish to alter or cancel the agreement made.
8. TRANSIT CONDITIONS
8.1 All goods, including those sold carriage paid, travel at the purchaser s risk. This remains unaffected by commitments assumed towards third parties, which are deemed to have been assumed in the purchaser s interests and at its expense.
8.2 The vendor is entitled to have goods that are ready but cannot be carried to their destination through causes beyond its control, stored at the purchaser ‘s risk and expense, or to procure their storage and demand payment as if delivery had been made.
8.3 The choice of means of transport lies with the vendor, even for non-carriage-paid consignments in respect of which the purchaser has given no directions for dispatch. Obstructions or temporary impediments of the means of transport chosen do not impose an obligation to use another means. The vendor is not liable if the transport selected by it is unavailable for any reason whatever.
8.4 The vendor undertakes to arrange customs clearance of goods manufactured abroad, to the exclusion of the purchaser.
8.5 The goods travel uninsured unless the purchaser has asked the vendor in good time to insure the goods at its expense while in transit.
8.6 Unless agreed otherwise, export and import duties, stamp duties, terminal charges, clearance costs, taxes etc. will be borne by the purchaser.
9. DELIVERY TIMES
9.1 Delivery times, even when agreed, can be quoted only approximately. If the agreed time of delivery has been exceeded, the buyer is entitled to set the seller a reasonable further time for delivery by registered letter. Only after exceeding this period can the seller be held liable for exceeding this period.
9.2 Such exceeding does not entitle the buyer to cancel the order or refuse the receipt or payment of the goods, nor does it oblige the seller to pay any compensation to the buyer, nor to deliver from stock, if purchased on delivery from the factory.
Products that have left our factory and products of which we have advised the principal in writing that they are ready for dispatch will be deemed to have been delivered without prejudice to the provisions of Article 11 and notwithstanding any obligation on our part to discharge assembly and installation obligations. The place of delivery is therefore our works, even if carriage-paid dispatch and/or carriage by ourselves has been agreed. If delivery is made in parts, the individual consignments will be deemed to have been delivered as such.
The risk passes to the principal at the time of delivery within the meaning of Article 9. The provisions of the previous sentence apply unabated even if the products are damaged through destruction of the packaging.
12. FORCE MAJEURE
Force majeure includes all circumstances that may reasonably be regarded as preventing delivery or timely delivery of the articles sold, such as failure of delivery or delivery in time to the vendor by its supplier and if the vendor fails to receive or fails to receive in good time the goods sold to it by its supplier, in which cases the vendor will have the option of deferring delivery or cancelling the purchase agreement.
13.1 The selling price stated by the vendor is based on its buying-in price and other cost factors. Where one of these cost components is increased after confirmation of the order but before delivery of the goods, the seller shall be entitled to pass on that increase to the buyer.
13.2 Without prejudice to its general applicability, this clause applies especially to any change in import or export duties or other duties or taxes arising following dispatch of the confirmation of order and to a change in the rate of exchange for the Euro against the foreign currency in which the vendor has purchased the goods.
14. PAYMENT CONDITIONS
14.1 The vendor enters into any agreement under the suspensive condition that the purchaser is sufficiently creditworthy in the light of the information to be obtained by the vendor. All goods delivered to the buyer remain the property of the seller until the full amount due has been paid.
14.2 The vendor is entitled to suspend discharge of its obligations during execution of the agreement until the purchaser has put up security at the request and to the satisfaction of the vendor for discharge of all its obligations under the agreement.
14.3 Invoices which were sent or delivered by the seller need to be paid within the term mentioned on the invoice, either in cash or on the bank account stated by the seller. The buyer is not entitled to any settlement.
14.4 The vendor is entitled to suspend discharge of its obligations until the purchaser has discharged the purchase price payable by it, insofar as it is due.
14.5 Without prejudice to the provisions elsewhere in this agreement, all goods supplied by the vendor at any time remain the vendor s property until all the vendor s receivables against the purchaser that fall within the scope of Belgian law, irrespective of the reason and whether or not matured, including interest and charges - and in the event of delivery being made on current account, up to the time of settlement of any balance that may be due in favor of the vendor - are paid. The purchaser may not pledge the goods to third parties or transfer possession thereof until the said payment or settlement is made in full, in each case excluding other than fiduciary transfer of title in accordance with the normal destination of the goods. On failure to do so, and in the event of whole or partial application of Article 13(1), the vendor will be entitled, without any authorisation from the purchaser or from the courts being required for this purpose, to recover itself all the goods supplied by it or to procure their recovery from the place where these goods are located. Any receivable from the vendor against the purchaser will then also be immediately collectable.
14.6 All our invoices are payable within 30 days of invoice date.
14.7 Failure to settle an invoice by the due date will result, ipso jure, in the charge of interest at the rate of 12% per annum and damages amounting to 15% of the invoiced amount, with no obligation to send a written reminder.
15. FAILURE OF PERFORMANCE BY THE PURCHASER
15.1 Should the purchaser fail to discharge any obligation imposed on it by this or any other agreement made, or to do so in time or properly, and if the purchaser should be declared bankrupt or an application has been made for its bankruptcy, or have itself applied for a suspension of payments or bankruptcy, or decides to or proceeds with the closure or partial closure or winding up of its business, and if any attachment is imposed on the purchaser, the purchaser will be deemed to be de jure in arrears and the vendor will be entitled without notice of default and without recourse to the courts being required, at its discretion and whether in combination or otherwise, to - suspend execution of any, or several or all obligations on its part towards the purchaser, in any respect whatever, and/or - demand cash payment for any execution on its part of any obligation, even if agreed otherwise and/or - dissolve or declare dissolved the agreement(s) as a whole or in part, without the vendor being liable in damages, under guarantee or otherwise. In each case without prejudice to the vendor s right to obtain reimbursement of loss, including loss of profit, costs and interest.
15.2 A complaint does not suspend any payment obligation.
All disputes under or in connection with a purchase agreement or further agreements connected therewith will be settled exclusively before the ordinary court of the vendor s place of establishment, unless the purchaser and vendor have agreed to submit the dispute to arbitration.
17. APPLICABLE LAW
All agreements of purchase and sale and associated agreements are governed by Belgian law exclusively, unless the parties have expressly agreed in writing to apply any foreign law contrary to this provision.