The present general sales conditions apply to any sale or delivery of goods by The Heating Company BVBA (hereinafter ?THC?), to the exclusion of any general or specific conditions communicated at any time by the buyer (hereinafter the "Buyer"). Any agreed derogation to these general sales conditions will only apply to the specific sale for which such derogation has been granted. By making any order, the Buyer acknowledges the present general sales conditions and irrevocably agrees to be bound by them.
2 Offers and Orders
2.1 THC?s offers are non-binding. THC will only be bound by an order upon its written confirmation.
2.2 All offers and acceptances of offers made by the Buyer, including verbal orders and acceptances, are irrevocable.
3.1 All goods will be delivered to the buyer within the European Union DDU (ICC Incoterms 2000). Unless specified otherwise, delivery outside of the European Union will be DDP (ICC Incoterms 2000).
3.2 The delivery times indicated are non-binding on THC, and are only given as an estimate. THC is entitled to perform partial deliveries.
3.3 No delay in delivery may lead to the cancellation of the sale or payment of damages to the Buyer. Accordingly, the Buyer is not relieved of any obligation to accept or pay for goods because of a delay in delivery. In case of non-delivery of goods, advances that may have been paid by the Buyer will be reimbursed by THC, without any additional interests or other compensation.
4 Retention of title
4.1 The goods supplied by THC remain its exclusive property until payment of the price in full by the Buyer. In case of non-payment upon the due date by the Buyer ? and without prejudice to THC?s rights under clause 8.6 ? THC will automatically be entitled to claim the goods back, ipso jure and at the Buyer?s expense.
4.2 If the Buyer resells the delivered goods before payment of the full price owed to THC, the retention of title will apply to the price owed to the Buyer or, as the case may be, the Buyer?s claim on its customer as a result of this sale will be pledged to THC as security for the payment of the price owed to the latter.
5.1 Unless otherwise provided in specific warranties offered by THC, any complaint regarding a shortage, defect or non-conformity (jointly a ?Defect?) of the delivered goods is only valid if notified to THC in writing as soon as possible after delivery and no later than:
- (i) three business days after delivery of the goods in respect of immediately noticeable, visible Defects; and
- (ii) three business days after the date of discovery of the Defect, or the date on which the Defect reasonably could have been discovered, in respect of all other Defects, but in any event no later than three (3) months after delivery of the defective goods.
5.2 Unless otherwise provided in specific warranties offered by THC, a complaint by the Buyer pursuant to clause 5.1 will only be valid if:
- (i) the complaint is made within the periods set out in clause 5.1, after which the Buyer is deemed to have waived all rights against THC in respect of a Defect of the goods or the way that THC fulfilled its delivery obligations; and
- (ii) the delivered goods have remained in the same condition as at delivery; and
- (iii) the delivered goods have been used properly and in conformity with the agreed or usual purpose; and
- (iv) the Buyer has fulfilled all its obligations towards THC.
5.3 No goods may be returned by the Buyer without THC?s prior express and written consent. 6 Limited General Warranty
6.1 In case of a timely and valid complaint for a wrongful delivery, THC shall at its option:
- (i) replace or repair the concerned goods at no cost; or
- (ii) supply equivalent goods; or
- (iii) credit the Buyer as far as is reasonable in whole or in part for the invoice value of the goods concerned.
6.2 In case THC-apparatus are installed in non-ventilated, humid or aggressive spaces, the buyer should inform us, so we can give an extra corrosion-treatment against a supplementary cost. If we also deliver plugs and fittings, this is only to simplify our production process. These plugs and fittings are never subject to any guarantee. For guarantee: see general guarantee conditions.
6.3 The general warranty set out in this clause 6, may be amended or complemented by specific warranties offered by THC from time to time.
6.4 THC-products will materially conform to the technical specifications and features provided for by the applicable catalogues and technical documentation. THC guarantees delivery in accordance with the presented samples with explicit reservation for small deviations in colour and in quality. Similarity in colour can only be guaranteed with simultaneous orders. The measures and dimensions in the catalogue and/or the price list are approximate. THC reserves the right to small deviations as well to changes in form and view of a model. 7 Liability - Force majeure
7.1 THC?s liability towards the Buyer is limited to the fulfilment of the warranty set out in clause 6. Consequently, THC is not liable for damage caused to the Buyer, except for damage caused by THC?s own fraud or wilful misconduct. THC is under no circumstances liable for loss of profits or production, environmental damage or any other consequential or indirect damage, whatever the nature, suffered by the Buyer. Moreover, THC is not liable for damage caused by its agents and sub-contractors (including damage due to their fraud, wilful misconduct or gross negligence).
7.2 THC is not liable for a delay in the performance of or a failure to perform its obligations arising from any event beyond its normal control, including without limitation, interruptions in production; difficulties in supply; shortages of raw material, labour, energy or transport; or delays in transportation; strikes; lock-outs; work interruptions; or any other collective labour disputes affecting either THC itself or its suppliers, whether or not such events are foreseeable.
8 Price and payment
8.1 The prices for goods are based on DDU (ICC Incoterms 2000) for delivery within the European Union and, unless specified otherwise, DDP (ICC Incoterms 2000) for delivery outside of the European Union and exclude VAT. All taxes or contributions, of whatever nature, levied on the price or the goods, as well as transport or insurance costs, as the case may be, need to be paid separately by the Buyer.
8.2 Unless stated otherwise, invoices are payable within thirty (30) days after the invoice date, without deduction or discount, in the currency as set out therein and if no specification is made, in euro. The acceptance by THC of bills of exchange or other payment instruments does not constitute a novation of debt. No ground, such as e.g. the filing of a complaint regarding the delivered goods, entitles the Buyer to withhold its payment.
8.3 The Buyer relinquishes any right to set off (schuldvergelijking/ compensation de dettes/ Aufrechnung). THC, however, may set off any amounts owed to it by the Buyer against any amounts THC owes the Buyer.
8.4 Any sum remaining due after the date of payment shall, ipso jure and without notice, produce an interest of one (1) per cent per month from the date of issuance of the invoice, each month having commenced being regarded as a full month.
8.5 In case of total or partial non-payment of an invoice upon due date, the Buyer shall, ipso jure and without notice, owe an indemnity of ten (10) per cent of the amount remaining due, with a minimum of EUR 125, and without prejudice to any other rights or remedies of THC to obtain full compensation for the costs and damage incurred.
8.6 THC is entitled, ipso jure and without notice or other formality, to postpone performance of its obligations towards the Buyer under any agreement, to terminate any agreement concluded with the Buyer with immediate effect, to claim immediate payment of all outstanding claims (including those not yet due) or to refuse performance except against cash payment, notwithstanding any prior agreement ? without prejudice to any other remedies which could be applied by THC ? if:
- (i) an invoice is not fully paid upon its due date, or
- (ii) the Buyer does not fulfil any of its obligations under an agreement, or
- (iii) the Buyer becomes insolvent, bankrupt, files or has filed against it a petition in bankruptcy, makes a proposal in relation to its insolvency under any bankruptcy legislation, ceases to carry on all or a substantial part of its business, makes an assignment for the benefit of its creditors, or if THC has good reasons to believe that the Buyer becomes unable to pay its debts as they come due, or
- (iv) there is a direct or indirect change of control over the Buyer or Buyer transfers all or substantially all its assets to a third party in any manner (including by merger, (partial) split, transfer or contribution of universality or branch of activity).
8.7 Failure to take immediate action against any breach or default by the Buyer may under no circumstances be construed as a waiver by THC of its right to act against such breach or default at a later point in time. 9 Intellectual property
The Buyer must not use or deal with any intellectual property rights (including, but not limited to, trademarks, brands, logos or designs) owned or licensed by THC without THC?s prior written consent. The Buyer shall not acquire any goodwill or any other right on THC?s intellectual property rights, even if used for an extended period of time.
10 Governing law and disputes
10.1 All relations between THC and the Buyer are governed by Belgian Law, to the exclusion of (i) the provisions of the United Nations Convention on Contracts for the International Sale of Goods and (ii) the rules on conflicts of laws.
10.2 If the Buyer is established in a Member State of the European Union, any dispute between THC and the Buyer shall be submitted to the exclusive jurisdiction of the Courts of Tongeren (Belgium). If the Buyer is not established in a Member State of the European Union, any dispute between THC and the Buyer shall be finally settled under the CEPANI Rules of Arbitration by three arbitrators appointed in accordance with the said rules. The seat of the arbitration shall be Brussels. The arbitration shall be conducted in English.
10.3 Notwithstanding the foregoing, THC will be entitled, at its sole discretion, to submit a dispute to a jurisdiction located in the district or region where the Buyer maintains its place of business.