GENERAL TERMS AND CONDITIONS DELMO
ALGEMENE VOORWAARDEN DELMO
Article 1: Applicability
1.1 Subject to any deviating special conditions included in a separate written agreement, these general terms and conditions apply to all legal relations (including orders, tenders, offers and agreements) with BV L&D Foodpartner, with its registered office at 9940 Evergem, Noorwegenstraat 29 box D and registered in the Crossroads Bank for Enterprises under the number 0768.656.308 (hereinafter referred to as: 'DELMO'). These general conditions form an indivisible whole with every offer and invoice issued by DELMO, and these documents must always be read together.
1.2 The other party that purchases goods and/or services from DELMO is referred to as a customer. A customer can be either a company in the sense of article I.1, 1° WER or a consumer in the sense of article I.1, 2° WER. With regard to the buyer-consumer, these terms and conditions shall apply, except in case of conflict with a mandatory statutory provision of the Consumer Code (CIS). In case of conflict, the conflicting provision shall be replaced by the relevant mandatory statutory provision.
1.3 By placing an order or accepting an offer from DELMO, the customer acknowledges having taken note of these general terms and conditions and having expressly accepted them. The party with whom a contract has once been concluded with the application of these general conditions agrees to the applicability of these conditions to subsequent agreements concluded with DELMO.
1.4 In the event of a conflict between these terms and conditions and any terms and conditions of the client, these general terms and conditions shall prevail. DELMO accepts any terms and conditions of the customer only after its written acceptance. DELMO's written acceptance of the customer's conditions does not affect the application of these general conditions insofar as they contain more specific provisions and/or deal with aspects not included in the customer's general conditions. This applies even if the customer's terms and conditions explicitly exclude the application of other general terms and conditions. The acceptance of a customer's offer is never regarded as DELMO's acceptance of the customer's general terms and conditions.
Article 2: Offers and establishment of the agreement
2.1 Offers emanating from DELMO remain valid for 30 days from the date the offer is made, unless expressly stated otherwise in the offer. The agreement is concluded upon acceptance of the offer by the customer within the aforementioned period.
2.2 If the customer provides DELMO with information, DELMO may assume its accuracy and completeness and will base its offer on that information.
2.3 The offer is limited to the delivery of the services and/or goods described in the offer. The prices stated in the offer are expressed in euros, exclusive of VAT and other government levies or taxes. The prices stated also exclude travel, shipping, packaging and storage costs, unless otherwise agreed in writing. For consumers, all prices are quoted inclusive of VAT.
For agreements with a total value of over €250, transport costs are included in the price, insofar as the transport can be scheduled in combination with other deliveries and/or the transport can be arranged within DELMO's usual round. For agreements with a total value of €250 or less and transport that cannot be linked to other deliveries or usual rounds, transport costs will be charged separately on the basis of a kilometre allowance of €0.40 per kilometre, unless the parties expressly agree otherwise in writing.
Article 3: Price change
DELMO may pass on to the customer any increase in cost-determining factors (such as wage costs, increases in prices, duties, taxes and/or levies taxing raw materials/materials of the product or the product itself and increases in transport and energy costs) that occurred after the conclusion of the agreement. DELMO undertakes to carry out such indexation only once a year, except where circumstances would require an interim adjustment.
In addition, DELMO may, after simple notification, change the price and/or charge additional prices/costs in, inter alia, the following situations: changes in specifications, if the information provided by the customer does not correspond to reality, if it appears that more/additional, faster or more expensive work is necessary or if the order requires a special approach in order to achieve proper execution of the agreement (such as badly worn/damaged blades, broken blades, rush orders, specific planning requirements, etc.).
DELMO will inform the customer about this in advance, unless prior notification is not possible due to the nature of the services, the time period within which delivery is to be made or in general the context does not allow this in a reasonably justifiable manner.
Article 4: Delivery and execution period
4.1 A stated delivery and/or execution period is indicative. This term only starts when agreement has been reached on all commercial and technical details, all necessary information and items are in DELMO's possession, if applicable the agreed (instalment) payment/advance payment has been received and the other conditions for the delivery/performance of the order have been met.
4.2 With due observance of the schedule, the delivery period may be extended/suspended in the following cases, among others:
- circumstances other than those known to DELMO when it gave the term;
- modification or extension of the agreement;
- the customer does not fulfil its obligations under the agreement, including payment obligations;
- suspension of DELMO's obligations (e.g. due to force majeure or other factors).
The duration of the extension/suspension of the delivery period is presumed to be necessary and due to one of the above cases, subject to proof to the contrary by the customer.
4.3 Exceeding the delivery and/or performance period does not entitle the customer to compensation, refusal to take delivery of goods and/or services or termination/cancellation of the agreement, except for deviating mandatory legal provisions. The customer indemnifies DELMO against any third-party claims resulting from exceeding this term.
Article 5: DELMO's obligations
5.1 DELMO shall perform the agreed order to the best of its ability, in accordance with the professional technical standards and regulations in force. The services DELMO provides are means obligations and not result obligations, unless expressly agreed otherwise. DELMO will make reasonable efforts to achieve the desired result. However, if the result does not (fully) meet expectations, DELMO cannot be held liable insofar as it can be shown that the work was performed in accordance with professional standards and agreed conditions.
5.2 If unforeseen circumstances beyond DELMO's control/will arise during the performance of the assignment that may affect the intended result, it will inform the client immediately.
Article 6: Delivery and risk
6.1 Unless the parties have agreed otherwise in writing, delivery takes place the moment the goods have been delivered by DELMO or a carrier commissioned by DELMO at the delivery address or at DELMO's address when handed over to the customer on site. If transport is commissioned by the customer, then delivery takes place at the moment the goods are offered to the carrier by DELMO. The customer bears the risk of the goods from the moment of delivery. This risk includes storage, loading, use, transport, loading, unloading, theft, damage and loss and any other depreciation of the goods delivered.
6.2 The buyer must ensure that an authorised person is present during the agreed delivery day to take delivery. If nobody is present/the goods are not accepted by the customer or his representative when they are delivered, if the customer/the person present refuses to accept/deliver the goods, if the customer fails to provide the information or instructions necessary for the delivery and the goods therefore remain with DELMO, the haulier or at any other place, they are always there at the customer's risk. Consequently, the customer bears all liability for fire, theft, loss, damage, breakage, etc.
6.3 DELMO does not accept returns and does not issue refunds for them unless DELMO has expressly permitted this in advance and the return is in accordance with the conditions set by DELMO. In case of return shipments without DELMO's prior consent, transport and storage will be at the customer's risk and expense.
Article 7: Retention of title and retention
7.1 DELMO remains the owner of the goods it has delivered in the event it grants ownership or user rights to certain goods until the price and appurtenances have been paid in full. As long as the retention of title is in force on the delivered goods, the customer may not encumber or alienate those goods. After a written reminder specifying a reasonable term, DELMO may proceed to recover the delivered goods at the customer's expense. The customer will cooperate fully to this end. If, after DELMO has delivered the goods to the customer, the customer has fulfilled its obligations, the retention of title in respect of these goods will revive if the customer fails to fulfil its obligations under an agreement concluded at a later date.
7.2 DELMO will also always have a right of retention until full payment of the price and appurtenances on all goods, instruments, documents, ... which it has in its possession on any account whatsoever in connection with the order. DELMO shall never be liable to the customer for any damage resulting from the exercise of the right of retention. The customer shall indemnify DELMO against claims by third parties as a result of invoking the right of retention.
Article 8: Force majeure
8.1 A failure to fulfil its obligations cannot be attributed to DELMO if such failure is the result of force majeure.
8.2 Force majeure includes the circumstance that the third parties engaged by DELMO such as suppliers, auxiliaries, subcontractors and transporters, or other parties on which the client depends, do not (timely) fulfil their obligations, weather conditions, natural disasters, terrorism, cybercrime, disruption of digital infrastructure, fire, power failure, loss, damage theft or loss of infrastructure, tools, machinery, materials or information, road blocks, strikes or work stoppages and import or trade restrictions.
8.3 DELMO shall be entitled to suspend performance of its obligations if it is temporarily prevented from performing its obligations to the customer due to force majeure. Once the force majeure situation has ended, DELMO will fulfil its obligations as soon as the schedule permits. If the fulfilment of its obligations is or becomes permanently impossible due to force majeure, or if the force majeure situation has lasted for more than 6 months, DELMO may dissolve all or part of the agreement with immediate effect. The customer may in such cases dissolve the agreement with immediate effect, but only for that part of the obligations that DELMO has not yet fulfilled.
Article 9: Execution of the agreement
The customer ensures that DELMO can start/carry out the order at the agreed time and/or collect the goods to be picked up. If DELMO cannot start/perform the order (on time) at the scheduled time due to circumstances attributable to the customer, DELMO may charge costs to the customer. These costs may include waiting times, transport and delay costs, the (rental) costs of materials/tools/machines and lost working hours. Waiting times longer than 15 minutes will be charged to the client at a rate of €50 per hour per worker, with each hour started counting as a full hour. If DELMO cannot commence the assignment on the agreed day, a flat rate of €500 will be charged. Transport costs will be charged on the basis of a kilometre allowance of €0.40 per kilometre.
Furthermore, in the event of a late start, the execution/delivery will be scheduled at the earliest possible time, cancelling all previous deadlines to which DELMO would have committed itself.
Article 10: Completion of the order
The order is considered delivered in the following cases:
- the client has approved the work/delivery;
- the customer has taken the object of the order into use. If the customer has put part of the object of the order into use, that part will be considered delivered;
- DELMO has notified the customer in writing that the order has been completed and the customer has not, within 14 days from the day of the notification, notified DELMO in writing that the order has not been approved;
- the customer has not approved the order on the grounds of minor defects or missing parts which can be repaired or redelivered within 30 days and which do not impede commissioning.
If the customer does not (fully) approve the order, it is obliged to notify DELMO of this in writing, giving reasons. The customer must give DELMO the opportunity to deliver the order within a reasonable period of time.
Article 11:
Liability
11.1 DELMO (including all third parties and/or auxiliary persons appointed by DELMO) is only liable for direct damage caused by its deliberate intent, serious fault or that of its appointees (article VI.91/5, 6° WER). For any other remaining damage (including damage caused by slight errors and indirect/consequential damage) DELMO is in no case liable, without prejudice to deviating mandatory legal provisions. Consequential damage includes stagnation damage, loss of production, loss of profit, fines, transport costs and travel and accommodation costs. If there are several parties involved in a claim, DELMO can only be held liable for the share for which liability is proven on DELMO's behalf. DELMO cannot be held liable for damages resulting from the customer's failure to fulfil its obligations.
11.2 Only the customer and/or its appointee(s) is/are responsible for the availability, accuracy and correctness of the necessary data to perform the agreement.
11.3 DELMO has insurance covering its activities. DELMO's obligation to compensate for damages on whatever basis, and regardless of the cause or extent, is in any event limited to those damages for which DELMO is insured under an insurance policy taken out by or on its behalf. DELMO's liability is limited to the conditions and cover provided by the insurance company. However, the extent of this obligation shall never exceed the amount paid out under this insurance in the case in question. DELMO will provide the customer with a copy of the policy upon first request.
11.4 If DELMO cannot rely on its insurance for whatever reason, the obligation to compensate damage is limited to a maximum of 15% of the total order sum (excluding VAT). If the agreement consists of parts or partial deliveries, this obligation is limited to a maximum of 15% (excluding VAT) of the order price of that part or partial delivery. In case of an agreement of indefinite duration, the obligation to compensate damages shall be limited to a maximum of 15% (exclusive of VAT) of the order price due over the last 12 months preceding the event causing the damages.
11.5 The client cannot derive any rights from DELMO's advice and information that is not directly related to the order. If the client or its auxiliary person/appointed person provides DELMO with information, DELMO may assume its accuracy and completeness in the performance of the agreement. The customer indemnifies DELMO against any claim by third parties regarding the use of advice, calculations, designs, materials, brands, models etc. provided by or on behalf of the customer. If DELMO suffers damage as a result, such as defence costs it has incurred against such claims, the customer will be obliged to compensate such damage.
11.6 The customer indemnifies DELMO against all third party claims based on product liability as a result of a defect in a product supplied by the customer to a third party and of which the products supplied/processed by DELMO form part. The customer shall be obliged to compensate all damage suffered by DELMO in this connection, including the full costs of defence.
11.7 Any non-contractual liabilities of third parties in respect of DELMO are always limited to the circumstances in which DELMO itself could be held liable by the customer. DELMO furthermore limits any extra-contractual liability claims against any auxiliary persons that may be involved in the context of the assignment to the liability claims that may be brought against DELMO itself. Any auxiliary person may invoke against the customer and any third parties involved the same exonerations as those that DELMO could invoke on the basis of the contract. DELMO shall not be liable for any damages to third parties, nor for third party claims against the Customer; DELMO shall not have to indemnify the Customer, nor shall it be obliged to compensate damages in connection with third party claims (e.g. claims based on hidden defects, disputes regarding delivery/performance, price changes, delay in delivery time, or any other claim that may be made by third parties against the Customer or its successors in title. Any joint and several and/or several liability of DELMO with these third parties is expressly excluded.
Artikel 12: Garantie
12.1 Bij levering van de goederen
en/of diensten moet de afnemer de conformiteit van de geleverde goederen en/of
diensten na te gaan, om, in voorkomend geval, een voorbehoud te formuleren met
betrekking tot hun conformiteit. De afnemer is verplicht DELMO onmiddellijk in
kennis te stellen indien hij meent een zichtbaar gebrek waar te nemen aan de
geleverde goederen en/of diensten. Indien eventuele zichtbare gebreken niet ter
kennis worden gebracht binnen 7 dagen na de levering van de goederen en/of
diensten, wordt de afnemer geacht de geleverde goederen en/of diensten te
hebben aanvaard en/of goedgekeurd. Voor aanspraken van de afnemer wegens
non-conformiteit en zichtbare gebreken is het vereist dat hij zijn
verplichtingen om het goed bij fysieke levering te onderzoeken en eventuele
gebreken te melden, is nagekomen. Verborgen gebreken moeten door de afnemer
binnen een termijn van 14 dagen na ontdekking van het verborgen gebrek of op
het moment dat het gebrek redelijkerwijs ontdekt had moeten worden, aan DELMO
worden gemeld. DELMO is slechts aansprakelijk voor verborgen gebreken die zijn
ontdekt binnen één jaar na het moment van levering, of, indien een voorafgaande
goedkeuring uitdrukkelijk is overeengekomen, één jaar na het moment van
goedkeuring. Voor de naleving van deze termijnen volstaat het dat de
kennisgeving tijdig wordt verstuurd. De aansprakelijkheid van DELMO is
uitgesloten voor de niet (tijdig) gemelde gebreken of in die gevallen waarin de
afnemer nalaat de juiste inspecties uit te voeren. DELMO is pas gehouden
uitvoering te geven aan de garantie voor zover de afnemer aan al zijn
verplichtingen heeft voldaan. Elke tussenkomst, aanpassing, wijziging,
verwerking, … door de afnemer (zijn aangestelden) en/of derden sluit elke
verdere gehoudenheid van DELMO uit voor eender welk gebrek dat zou worden
vastgesteld.
12.2 Als de levering niet deugdelijk is geweest, maakt DELMO binnen redelijke
termijn de keuze of zij de zaak herstelt, vervangt of de afnemer crediteert
voor het evenredige deel van de overeengekomen prijs. De afnemer moet DELMO in
de gelegenheid stellen een eventueel gebrek te herstellen. Zaken die door DELMO
worden hersteld of vervangen, moeten door de afnemer, op zijn risico/kosten,
aan haar worden toegezonden of aan haar fysiek ter beschikking gesteld, tenzij
anders overeengekomen. Transport- en verzendkosten, reis- en verblijfskosten en
reisuren komen voor rekening van de afnemer.
12.3 Garantie is uitgesloten voor gebreken die het gevolg zijn van normale
slijtage, onoordeelkundig gebruik, niet, laattijdig of onjuist uitgevoerd
onderhoud, wijziging of reparatie door de afnemer of door derden, gebreken aan
of ongeschiktheid van zaken die afkomstig zijn van of voorgeschreven zijn door
de afnemer of gebreken aan of ongeschiktheid van door afnemer gebruikte
materialen of hulpmiddelen. Daarnaast wordt geen garantie gegeven op geleverde
zaken die niet nieuw waren op het moment van levering, noch op onderdelen
waarvoor fabrieksgarantie is verleend.
12.4 Als partijen afwijkende garantievoorwaarden zijn overeengekomen, is het
bepaalde in dit artikel onverminderd van toepassing, tenzij de inhoud in strijd
is met die afwijkende garantievoorwaarden. Het bepaalde in dit artikel
overeenkomstig van toepassing bij eventuele aanspraken van de afnemer op basis
van wanprestatie, non-conformiteit of welke andere grondslag dan ook.
Article 13: Payment
13.1 Invoices are payable on the due date at DELMO's registered office or to an account to be designated by DELMO. In the absence of provision to the contrary, invoices are payable in cash on the invoice date.
13.2 In the event of (partial) non-payment of an invoice on the due date, the customer will owe default interest by operation of law and without prior notice of default. The interest rate is 12% per annum, but is equal to the legal interest rate in accordance with the Late Payment in Commercial Transactions Act of 02/08/2002 if it is higher. Furthermore, the customer shall owe DELMO a damages clause of 10% of the outstanding invoice amount with a minimum of €40 and a maximum of €3,000. All unpaid (even non-due) claims also become immediately due and payable and further invoicing will only take place via prepayments.
13.3 Protests against an invoice must be submitted in writing within a period of 14 calendar days after the invoice date. If the protest is not submitted (on time), the invoice shall be deemed to be accepted, including the statement of account contained therein and the services listed.
13.4 Irrespective of whether DELMO has fully performed the contract, everything that the customer owes or will owe to it under the contract shall be immediately due and payable in the following cases: exceeding the payment term; insolvency, dissolution, division, bankruptcy or judicial reorganisation of the customer-company; attachment of goods or receivables of the customer; collective debt settlement/protection measure or death of the customer-consumer.
13.5. Set-off by the buyer-company is expressly excluded. DELMO may offset its claims against the customer or companies associated with the customer against any outstanding debts on its behalf.
13.6 If the agreement is concluded with a buyer-consumer, set-off is permitted and prices are shown inclusive of VAT. In the event of (partial) non-payment of an invoice by the buyer-consumer on the due date, the following costs and interest shall be charged after the expiry of a waiting period of 14 calendar days, starting from the third working day after a first free payment reminder is sent by post, or from the first calendar day if the reminder is sent electronically:
● Interest at the rate stipulated in the Act of 02.08.2002 on combating late payment in commercial transactions, due automatically and without further notice from the calendar day after the first reminder is sent (by SMS, e-mail or other durable medium);
● After the first free of charge reminder, compensation is also due, calculated as follows:
○ For debts up to € 150: € 20;
○ For debts between € 150.01 and € 500: € 30, plus 10% of the debt for that tranche;
○ For debts higher than €500.01: €65, plus 5% of the debt on the tranche higher than €500.01, up to a maximum of €2,000.
● A cost of €7.50, plus the postage costs applicable at the time, will be charged for each reminder from the second reminder, or from the first reminder in case of a fourth late payment in the same year in case of regular delivery of goods or services.
Article 14: Intellectual property
Unless otherwise agreed in writing, DELMO remains the owner of all intellectual property rights (including but not limited to copyrights, trademarks, patents, and industrial designs) relating to the products and/or services it supplies. The customer only acquires a non-exclusive, non-transferable right to use the delivered products and services as agreed. DELMO is not liable for any damage suffered by the customer as a result of an infringement on the intellectual property rights of third parties, except in the case of DELMO's intent or gross negligence. The customer indemnifies DELMO for claims by third parties regarding an infringement of intellectual property rights related to the customer's use of the delivered products and/or services.
Article 15: Termination of the agreement
15.1 The customer may terminate, break or cancel the agreement in whole or in part. In that case, the customer will owe DELMO an immediately payable compensation amounting to the work already performed and/or goods purchased/delivered, plus compensation of 20% of the agreed order sum if less than 50% of the total order has been performed/delivered or 20% of the remaining balance if more than 50% of the total order has been performed/delivered.
15.2 If DELMO has repeatedly requested the customer in writing to collect/deliver/deliver the order without the customer responding positively, this will be regarded as a unilateral termination of the agreement by the customer. In this case, the customer shall owe DELMO compensation in accordance with the previous paragraph.
Article 16:
Privacy
The parties shall process each other's personal data, as well as that of their staff, employees, auxiliaries, appointees, agents and other relevant contact persons in accordance with the Act of 30 July 2018 on the protection of natural persons with regard to the processing of personal data. This processing of data is done for the following purposes: performance of the contract and the resulting rights and obligations, compliance, file/customer management, informing about new products/services, promotional campaigns. The processing relies on the following legal grounds: consent of the relevant party, performance of the agreement, fulfilment of a legal obligation, protection of vital interests of a person and/or representation of a legitimate interest. The parties undertake to process personal data only in light of the aforementioned purposes and in accordance with the aforementioned law. Each party has the right to object, free of charge, to the processing of its data for marketing purposes. Personal data will only be shared with processors, recipients and/or third parties to the extent strictly necessary for the purposes intended. The parties guarantee that personal data will be secured to the best of their abilities. In case of a data leak or other breach, this will be reported to the other party without delay. Each party shall be aware of its rights of access, rectification, objection and erasure.
Article 17:
Article 17: Miscellaneous
17.1 If any provision in these terms and conditions is found to be wholly or partially invalid, void or unenforceable for any reason, that provision shall be deemed to be severed and not affect the validity and enforceability of the remaining provisions. In such a case, the parties will enter into mutual consultation to reach a substitute arrangement that observes as much as possible the purpose and purport of the original provision.
17.2 The agreement contains all agreements regarding the rights and obligations of the parties, unless explicit reference is made to specific documents within this agreement. Any correspondence and documents in any form preceding the agreement do not bind the parties and cannot be used to interpret the agreement. Amendments to the agreement shall only be valid if agreed in writing and signed by the authorised representatives of the parties.
17.3 Insofar as these conditions determine a (damage) compensation that the customer-consumer would owe DELMO, the customer-consumer shall be entitled to an equivalent (damage) compensation at DELMO's expense based on the requirement of reciprocity.
17.4 An amendment to these terms and conditions can only be made with mutual written agreement.
Article 18: Applicable law and competent court
The legal relations between the parties shall be governed exclusively by Belgian law. The Vienna Sales Convention (C.I.S.G.) shall not apply, nor shall any other international regulation the exclusion of which is permitted. Disputes are subject to the jurisdiction of the courts of DELMO's registered office, without prejudice to the provisions of the Judicial Code applicable if it concerns a dispute with a buyer-consumer.