LABELMATE BVBA GENERAL TERMS AND CONDITIONS OF CONTRACT
(1) Unless otherwise agreed in a written agreement with the customer, the following General Terms and Conditions of Contract (hereinafter “Terms”) apply to all contracts – including future contracts. The Terms apply only if the customer is an entrepreneur, a legal entity under public law or a public-law special fund. The customer acknowledges these “Terms” by placing the order or accepting the products delivered; this also applies even if we make no express objection to the deviating terms and conditions of business of the customer. If the customer does not agree to this course of action, it must draw express attention to this fact immediately in a separate letter. We reserve the right, in this event, to withdraw our offer without this being able to establish any claims against us of any kind whatsoever.
(2) Our quotations are without obligation. Technical details and descriptions of the items for delivery contained in quotations, brochures and other sources of information are subject to change without notice due to technical developments.
(3) All alterations of provisions of these Terms or the contract must be made in writing.
(4) The invalidity of individual contractual provisions does not affect the validity of the remaining provisions. Invalid provisions must be replaced by other provisions that are legally valid and which come closest to the economic intention of the invalid clause.
(5) Unless otherwise agreed, place of performance for all payment obligations and other contractual obligations for registered merchants is the registered office/seat of LABELMATE BVBA. Place of performance for deliveries is the place of dispatch.
(6) If the customer is a registered merchant as defined in the Belgian commercial code, a legal entity under public law or a public-law special fund, then Brussels is the exclusive (also international) place of jurisdiction for all disputes arising directly or indirectly from the contractual relations. However, we are also entitled to bring an action at the general place of jurisdiction of the customer.
(7) Our entire business relations are governed exclusively by Belgian law. The application of the UN Convention on Contracts for the International Sale of Goods (CISG) is expressly excluded.
(8) The rights of our customer under the contract are not transferable.
(9) Within the framework of the contract as a whole, individual contractual agreements apply in the following order of priority:
– all individual agreements
– the distribution contract including annexes.
– the special terms of contract of our business areas (e.g. for repairs, maintenance, etc.)
– these General Terms and Conditions of Contract
– the statutory provisions which are alterable by mutual agreement
- Terms and Conditions of Sale
- Delivery, Passing of the Risk, Default
(1) The extent of our delivery obligation is determined solely by our written quotation and/or our written confirmation of order.
(2) We shall make every effort to adhere to the delivery periods and/or dates we have indicated. If we fail to receive deliveries from our own suppliers, without any fault on our part, although we placed matching orders simultaneously with reliable suppliers, we are released from our obligation to deliver. In such an event, we shall notify you in good time. Unless otherwise expressly agreed in writing, the delivery period starts to run at the time of sending the confirmation of order. In any case, adherence to the delivery period presupposes that the customer has duly fulfilled in due time all duties of cooperation incumbent upon the customer under the individual contract or these Terms. This includes, in particular, the presentation of all necessary documents, adherence to payment obligations, the procurement of export permits and similar.
Where it is reasonable to make part deliveries, these may take place and be invoiced separately. The customer must place call-off orders under blanket orders within three months. A reasonable period of time of one month must be allowed between call-off and the desired delivery date.
(3) Unforeseeable occurrences such as force majeure, delays in delivery or transport or labour disputes release us, for their duration, from the obligation to deliver on time, where we are not responsible for the same. Delivery periods are extended by the length of the disturbance. We will notify the customer immediately of such a disturbance. If the disturbance lasts for longer than two months, both parties may withdraw from the contract. In this event, the customer has no claims to compensation for damages.
(4) We cease to be under a duty to perform if we may not deliver due to public-law regulations in Belgium or in other countries; we are not responsible for determining and adhering to such regulations.
(5) If, after conclusion of the contract, it becomes apparent that our claim to payment is endangered by the customer’s lack of ability to pay, we are entitled to refuse delivery until the customer has furnished consideration or security for the same. If we set the customer a reasonable period of time to this purpose without success, we are entitled to withdraw from the contract.
(6) In the event of a delay in delivery, the customer is entitled to withdraw from the contract only if the customer sets a reasonable subsequent period of at least two weeks and simultaneously notifies its withdrawal from the contract in the event of non-delivery within the set period.
(7) If the customer is in default with a call-off order, acceptance or collection of the goods or if the customer is responsible for a delay in dispatch or delivery, we are entitled, without prejudice to further claims,
- a) to store the goods at the expense and risk of the customer either on our own premises or on those of a third party and to charge the customer storage costs in the amount of 0.5% of the invoice amount payable for the non-accepted quantities for each commenced week of storage, unless the customer provides evidence that the actual costs of storage costs were lower, or
- b) after expiry of the subsequent deadline we have set, to withdraw from the contract with regard to the amount of the unaccepted quantity.
In the event of the customer cancelling the contract without cause, we are entitled to require 15% of the gross order value as liquidated damages (damages in lieu of performance).
(8) Transport and packaging are at the expense of the customer. Unless otherwise agreed explicitly in writing, it is for the customer to arrange any transport insurance or other insurance.
(9) Unless otherwise stipulated in these Terms, the terms and definitions of the INCOTERMS 2010 apply to the use of cost clauses.
(10) Unless an obligation to be performed at the customer’s place of business is agreed, the transport risk for all deliveries passes to the customer as soon as the goods have left the warehouse of LABELMATE BVBA or have been handed over to a means of transportation, including our own means of transport, to a shipping agent or freight forwarder on the grounds of the delivery point or warehouse; this applies regardless of who is paying the freight costs
(11) If claims for transport damage or transport losses should nevertheless be brought against us in exceptional cases, the customer may only claim the same if the customer has performed its statutory or contractual duties of cooperation. These include, in particular, that the customer, before paying for the freight, has arranged for the damage and/or loss to be noted on the freight documents and freight invoices and for proper documentation to be made and that the customer has notified us or the transport companies of such damage or losses within a cut-off period of 7 days after receipt of the goods at the destination or of failure to receive the same after receipt of notification of readiness for delivery, and holds the goods, including the packaging, ready for our inspection.
- Prices, Terms of Payment, Furnishing of Security
(1) Deliveries are made at the prices quoted in the confirmation of order (plus the relevant applicable rate of value-added tax). Unless otherwise agreed expressly in writing, we are entitled, in the event of the subsequent introduction of – or increase in – duties, taxes or other charges imposed on the goods, including but not limited to EU duties and anti-dumping duties or countervailing duties or similar or in the event of a change in currency parities, to adapt the agreed selling price accordingly.
(2) Unless otherwise agreed in writing, payments are to be by bank transfer at the latest 30 days after issue of the invoice. Payment is deemed to have been made with effect from the date on which we can dispose of the amount.
(3) If the customer has not fulfilled several similar types of liabilities, the customer is not entitled to choose the debt against which payment has been made. Instead, we are entitled to offset payments received against outstanding liabilities of the customer plus costs and interest.
(4) In the event of payments being overdue, without prejudice to higher claims, we are entitled to charge default interest at the rates that we ourselves have to pay for credit availed of, however, at least 9 percentage points above the relevant base interest rate.
(5) Otherwise we are entitled, in the event of payment default after setting a reasonable deadline, to withdraw from the contract and/or claim damages in lieu of performance.
(6) No set-off against counter claims other than against claims that are undisputed or established as final and non-appealable is admissible. Our customer is entitled to claim a right of retention only for receivables that are undisputed or established as being final and non-appealable.
In the event of defects in the delivery, the customer’s rights in accordance with B., IV., (2) Sentence 4 of the Terms remain unaffected. If the customer should nevertheless exercise a right of retention to an item to be surrendered without having the right to do so, the customer is prohibited from using this item. If the customer nevertheless uses the item, the customer must pay compensation for use at the usual market hire rates.
(7) Under the European Packaging Regulation, inter alia, distributors who bring packagings into circulation, regardless at what level of trade, are obliged to take back packagings after use and send them for re-use or recycling. The taking back and use (disposal) of transport packagings is to take place decentrally, i.e. by our customers in cooperation with a regional disposal company. Decentral disposal by the customer releases us from our own obligation to take back packagings.
The customer will comply at all times with its obligation to take back packagings and send them for proper re-use and recycling in due and verifiable form.
Contraventions may be punishable as administrative offences.
We are not bound to the principle of decentral disposal; in particular, the coming into force of further stages of the Packaging Regulation such as the introduction of returnable transport packagings may require adaptation of this concept. We are entitled to make such adaptation at all times. In doing so, we shall always give due consideration to the needs of our customers. The customer cannot derive any claims against us as a result of the adaptation of the return/disposal concept.
III. Reservation of Title
(1) The goods delivered (“reserved-title goods”) remain in our ownership until the payment in full of all receivables that have arisen and will arise on the basis of the purchase contract. In the event of multiple receivables or a current account, the reservation of title is deemed to be security for the balance of receivables, even if individual deliveries of goods have already been paid for. In derogation of the above paragraph, the delivered goods remain in our ownership in the event of payment by cheque or bill of exchange for as long as we ourselves bear liability for the bill of exchange or cheque.
(2) The customer is entitled to resell only subject to reservation of title and only in the normal course of business, however, is not entitled to pledge the same, transfer title as security or undertake other exceptional disposals. It is agreed that the receivables resulting from the resale are already now assigned to us. The customer may collect the receivables. The customer must hold the amounts received in trust for us. The customer must leave collection to us if it fails to meet its obligations to us or suffers from severe financial difficulties. The customer must give us every assistance in collection. To this purpose, the customer must give us all necessary information and hand over all necessary documents. If the reserved-title goods are resold together with other goods, the agreed assignment in advance applies to the value of the reserved-title goods only.
(3) The customer undertakes any processing on our behalf without this establishing any obligations on our part. In the event of the reserved-title goods being processed, combined or mixed with other goods, we acquire a share of title in the new item produced; in the event of processing, this share of title represents the proportionate value (= gross invoice value including ancillary costs and taxes) represented by the reserved-title goods in relation to the value of the new item; in the event of combining or mixing, this share of title represents the proportionate value of the reserved-title goods in relation to the value of the other goods. If the customer becomes the sole owner, the customer already now grants us the share of title as defined above and keeps the item safe on our behalf free of charge. If the item is resold, the assignment in advance agreed above also applies to the receivables of the customer from the resale, however, only in the value of the reserved-title goods.
(4) The customer undertakes to insure the reserved-title goods adequately against all usual risks, store them separately, treat them with care and, if we so require, mark them accordingly. It is agreed that claims arising from an insurance claim against the insurer are already now assigned to us in the value of the reserved-title goods.
(5) Any attachments or other seizures of the reserved-title goods by third parties must be notified to us in writing without delay giving the name and address of the attaching party or third party.
(6) If the customer is culpably in default or culpably fails to fulfil other essential contractual duties, we are entitled to withdraw from the contract in accordance with the statutory provisions and/or to require surrender of the goods because of the reservation of title. The requirement to surrender the goods does not simultaneously imply a declaration of withdrawal; instead we are entitled to require surrender of the goods and to reserve the right of withdrawal. If the customer does not pay the due purchase price, we may assert these rights only if we have previously set the customer a reasonable deadline for payment without
success or if the statutory provisions allow the setting of such a deadline to be dispensed with. The customer must tolerate removal of the goods and allow entry to its office and business premises for this purpose. If we have specified a period for performance with threat of rejection thereafter, and if we thereafter sell the goods, the customer is liable to us for the difference between the selling price to the customer and the proceeds of sale. The customer also pays the costs of repossession.
(7) Our prior consent is required for the conclusion of financing contracts (e.g. leasing agreements) that involve the transfer of our rights of title unless the contract obliges the financing institute to pay our share of the selling price directly to us.
(8) If the value of all securities exceeds the value of the receivables secured by more than 10%, the customer may require the release of securities up to this amount at our discretion.
(9) In the event of court actions based on reservation of title, we are free to take action against a foreign customer before the courts of its home country and under its legal system. In the latter case, a provision reserving title is deemed to have been agreed that most corresponds to the reservation of title agreed herein.
- Rights in case of Defects
The rights of the customer in the event of defects are based primarily on the agreement made regarding the properties of the products. Deemed to be an agreement on the properties of the goods are product descriptions which were provided to the customer prior to its purchase order or which were incorporated into the contract in the same way as these Terms. In case of doubt, declarations regarding the properties of the products represent a guarantee only if we have expressly described them as such. Unless there are overriding provisions in the individual case or for individual areas of our company, the following applies in the event of defects:
(1) The customer must examine each delivery carefully and completely immediately after receipt. Defects or short deliveries recognisable during the examination must be complained of in writing without delay after receipt. Otherwise the entire delivery is deemed to have been approved. If a defect not recognisable at the time of the initial examination should later become apparent, the customer must notify us without delay. When issuing the notice of defect, the customer must describe the alleged fault in detail in writing and, in particular, communicate the manner in which, and the circumstances under which, the fault occurred.
(2) In the event of defects, we may initially improve or deliver replacements at our discretion. As stipulated in this section B. IV. and otherwise in accordance with the statutory provisions, we are liable for the goods being free of defects at the time of passing of the risk for a period of 12 months beginning with the date of delivery. We are entitled to make the subsequent performance owed conditional upon the customer paying the due selling price. However, the customer is entitled to withhold a part of the selling price that is reasonable in relation to the defect.
(3) Our liability for defects is cancelled in the event that our operating and maintenance instructions are not followed or parts are replaced or materials are used that do not meet the original specifications, or there is interference by unqualified personnel, and this has caused the defects. If a defect is present, and if one of the aforementioned situations existed, the customer must prove that the defect was not caused by one of the above situations. If the customer’s demand for the elimination of defects proves unjustified, and if the customer is responsible for this, we may require that the customer refund the costs incurred as a result.
(4) The customer must send back the documents (order confirmation, delivery note, invoice and similar) showing the grounds for the claim to warranty when returning the goods complained of. The customer must return the goods complained of to us in the original packaging or, if this is no longer available, in an equally secure packaging.
If our written consent has not been received, we may refuse to accept the goods. Moreover, the provisions contained in D. must be observed.
In all cases, the customer bears the transport risk for the outward and return transport. However, we pay transport costs incurred for the return transport, labour and material costs resulting from a justified complaint about defects.
(5) The customer has a right to withdraw from the contract or to reduce the purchase price only if the breach of duty underlying the defective nature of the goods is substantial, the customer has previously demanded in writing that we improve the goods or deliver replacements within a reasonable period of time, and we have failed to perform within this period. A right of withdrawal or to reduce the purchase price is available only if subsequent performance has failed twice.
(6) Claims based on defects become time-barred 12 months from the date of delivery. This does not apply if longer periods are prescribed by statute or in cases involving harm to life, physical injury or harm to health, in the event of a deliberate or grossly negligent breach of duty on our part and malicious concealment of a defect. The statutory provisions governing the inhibition of prescription and the inhibition and restart of limitation periods remain unaffected.
(1) Unless otherwise agreed in these Terms, including the provisions that follow, we are liable for a breach of contractual and non-contractual duties according to the pertinent statutory provisions.
(2) Regardless of the basis in law, we are liable to compensate for damages in the event of intent and gross negligence. In the event of simple negligence, we are liable only
- a) for damages arising from harm to life, physical injury or harm to health,
- b) for damages arising from the breach of a fundamental contractual duty (an obligation essential for the proper performance of the contract and on the adherence of which the parties to the contract are normally entitled to rely and may rely); in this event, however, the liability to compensate for damages is limited to typically occurring damages foreseeable at the time of concluding the contract.
(3) All other claims of the customer based on contract or tort are excluded. We are not liable, in particular, for damage that did not occur to the actual goods delivered; we are equally not liable for lost profits or other financial losses of the customer.
(4) The limitations of liability arising from the above paras. (2) and (3) do not apply if we have maliciously concealed a defect or given a guarantee for the properties of the goods. The same applies to claims of the customer under the Belgian law.
(5) Where our liability to compensate for damages is excluded or limited under the above provisions, this also applies in respect of the personal liability of our employees, representatives and agents.
(1) We assume no liability for the hardware/software delivered being compatible with all other hardware/software available on the market.
(2) When delivering software, the rights of use of the customer are governed by the relevant end-user licensing terms and conditions that the customer must agree to separately. Unless otherwise agreed in the individual case, the customer receives merely a non-exclusive right to
use the software. The software may only be used by the maximum number of natural persons that corresponds to the number of licences acquired by the customer. The admissible use includes the installation of the software, loading into the RAM memory and use by the customer for its intended purpose. For hardware products supplied together with software, the customer’s right to use the software is limited to use on the hardware with which it is supplied.
- Terms and Conditions of Repair
- Order and Scope of Performance
(1) Except for our liability for defects, we provide repair services only if we have confirmed the repair order in writing before the customer sends in the device to be repaired. The device must be sent in while quoting the RMA number. Moreover, the provisions of Section D. must also be observed. If devices are sent in without quoting the RMA number, we are under no obligation to accept them. Instead we can send them back while excluding all liability and costs.
(2) Usual repairs and remedial work will be charged at flat rates. Unusual repairs are charged for taking account of the length of the work assignment, whereby charges are made for each half of an hour commenced and for the materials used.
(3) Replaced parts which have scrap value only become our property, others will be credited to the customer at fair value.
(4) The customer bears the risk and costs of outward and return transport or outward and return forwarding of the devices to be repaired.
- Terms of Delivery, Prices, Reservation of Title
Unless otherwise agreed in this Section C, the provisions of Section B apply mutatis mutandis.
III. Rights in case of Defects
(1) As stipulated in this Section C., III. and otherwise in accordance with the statutory provisions, we are liable for the proper performance of all repair services undertaken, however, we give no warranty for the constant operating readiness of the machinery or equipment repaired by us.
(2) Work that is performed defectively gives the customer the right to require improvement and repair free of charge. Improvement and repair is performed in this case in the workshop of the firm LABELMATE BVBA. However, the customer bears the transport risk for the outward and return transport of the machines and devices also in this case.
Otherwise the provisions of Sections B., IV. and V. mutatis mutandis to the warranty.
- Return of Products
- Delivery Documents
(1) Unless otherwise provided for in warranty cases or for the repair orders (Sections B, IV., 4 and C., I. 1), each return of goods requires our written approval. To be enclosed with the returned products:
(a) a copy of our delivery note for the goods received;
(b) the return note of the customer addressed to the order processing department or, to the warehouse for spare parts.
(d) In transport damage cases, the customer’s damage report to the freight forwarder.
- Credit Note
If we accepted returned goods although the goods conform to the details in our order confirmation or in our delivery note and we are, therefore, under no obligation to accept the returned goods, a deduction will be made from the credit note in the amount of 30% as a flat rate to cover the costs we have incurred, however, at least EURO 25.00. This provision does not apply to warranty cases.
- Export Permits
The export of the contractual products and documents may, owing to their type or intended purpose, be subject to a duty of approval.
- Data Protection
All data are stored electronically and/or manually in accordance with the data-protection laws and other statutory provisions. Insofar as this is necessary to perform business transactions, we forward data also to third parties in conformity with the statutory provisions.