MEGAFORM GENERAL CONDITIONS OF SALE
Article 1 – Defined terms
Seller means MEGAFORM SA, a company incorporated under Belgian law with its registered office at 177, rue Haute B-4700 Eupen and registered with the Crossroads Enterprise Database (CED) under the number 0448.268.672.
Client means the person whose identifying details are indicated on the Order Confirmation, as defined below.
Small Order means order under hundred-fifty (150) euros.
Order Confirmation means the Seller’s document confirming the Client’s order.
Contract means the agreement concluded between the Seller and the Client, composed of the Order Confirmation regarding Products and the present general conditions of sale.
Products means the goods sold by the Seller to the Client, on the basis of a Contract.
Contractual Specifications means the specifications established by the Seller for the Products covered by the Contract resulting from the Product descriptions contained in the catalogues and/or on the website of the Seller (http://www.megaform.be/en-us/Default.html) insofar as they are expressly referred to in the Contract.
Article 2 – Applicable general conditions and scope of those present conditions
2.1. By placing an order with the Seller, the Client waives the application of its own general conditions and acknowledges familiarity with and unconditional acceptance of the present general conditions. Unless agreed otherwise in writing with the Seller, only the present general conditions of sale are applicable to the Contract.
2.2. The present general conditions of sale can be amended by the Seller without prior notice, by simply informing the Client. The amended general conditions of sale will only apply to Contracts concluded after the date of their entry into force.
2.3. The present general conditions of sale apply to any Contract.
Article 3 – Conclusion of the Contract
3.1. Any order placed by the Client shall not be binding on the Seller unless it forms the object of an Order Confirmation.
3.2. Unless otherwise provided in the Order Confirmation, the Contract shall enter into force on the date of the Order Confirmation and terminate on the date on which the totality of contractual obligations is executed. The parties agree that the following articles shall survive termination of the Contract and remain in force until the extinguishment or expiry of their purpose: Articles: 6.2., 7, 8, 9, 10 and 13.
3.3. Any offer as well as any statement or information regarding the Products, in particular relating to their price, characteristics and qualities, which appears in the catalogues, prospectuses, advertisements, price lists and similar documents of the Seller is only binding on the latter insofar as it is expressly referred to in the Contract.
Article 4 – Price, invoicing and payment terms
4.1. All sales prices for the Products indicated in the Contract are denominated and payable in euros (€) and are exclusive of tax. Samples are charged. However, the return of a sample within two months from the date of the delivery shall give rise to reimbursement of the price to the Client. Extra charges of ten (10) euros as specified in the Order Confirmation may be charged in case of Small Orders.
4.2. Unless stipulated otherwise in the Contract, the Products shall be invoiced upon delivery.
4.3. Unless stipulated otherwise in the Contract or the invoice, all invoices of the Seller must be paid within a period of 14 (fourteen) calendar days from the invoice date, net without discount, by wire transfer to the bank account indicated by the Seller. If the invoice is payable before the delivery of the Products, the payment must be made on a pro forma invoice basis.
4.4. All invoices of the Seller are considered as finally accepted by the Client if they are not contested in writing by registered mail sent to the Seller within 10 (ten) calendar days from the date of the invoice.
4.5. If an invoice is not paid on time, all invoices addressed to the Client will be immediately due and payable. Moreover, the Seller is authorized to hold deliveries until payment in full of all past due invoices.
4.6. By operation of law and without prior notice, interest will accrue on each past due invoice, at the statutory rate, in accordance with the Act of 2 August 2002 on the fight against late payment in commercial transactions, as from the due date of the invoice.
4.7. In addition to interest for late payment, the outstanding invoice amount will be increased, by operation of law and without notice, by a compensation for the recovery costs incurred due to late payment (including a procedural indemnification in accordance with the Judicial Code) with a minimum of EUR 40, without prejudice to any other means of recourse the Seller may have under the Contract or applicable law.
4.8. In the event of a deterioration in the financial situation or creditworthiness of the Client, its insolvency or commencement of bankruptcy proceedings, the Seller shall have the right, at its sole discretion, to put an end to the Contract, effective immediately, by sending the Client a notice by registered mail, without prejudice to any of the Seller’s other rights. In this case, the Client or its successors are obliged to return any unpaid merchandise to the Seller within 24 (twenty-four) hours.
Article 5 – Delivery times
5.1. Unless stipulated otherwise in the Contract, the delivery times notified by the Seller are strictly indicative. The Seller shall make reasonable efforts to deliver the Products by the agreed delivery time. In the event of late delivery, the parties shall agree on a new delivery time, without the Client being able to rely on the delay in order to claim damages or terminate the Contract. The Seller reserves the right to make partial deliveries.
5.2. If the Client fails to accept or pick up the Products ordered or causes any delay whatsoever in delivery, the Seller has the right, without prejudice to its other rights, to claim a compensation of 15% of the sales price of the Products for the resulting costs, including storage costs incurred by the Seller or its supplier.
Article 6 – Transfer of risk, reservation of title
6.1.In the absence of a contractual provision to the contrary, the Products are sold packaged EXW THIMISTER/BELGIUM (INCOTERMS 2020 ICC).
6.2. The Products sold by the Seller to the Client remain the sole property of the Seller until payment in full by the Client of all amounts due to the Seller, including interest and any possible damages or other forms of compensation.
6.3. Notwithstanding delivery and the passing of risk, property in and title to the goods shall remain with the Seller until the Seller has received payment of the full price of (a) all Goods and/or Services the subject of the Contract and (b) all other goods and/or services supplied by the Seller to the buyer under any contract whatsoever. Payment of the full price shall include, without limitation, the amount of any interest or other sum payable under the terms of this and all other contracts between the seller and the buyer.
Article 7 – Confidentiality and intellectual property
7.1. The Client undertakes to respect the confidential nature of designs, technical documents and other Confidential Information provided by the Seller. For the purposes of these General Conditions of Sale, "Confidential Information" shall mean any information, data and experience in any form emanating, directly or indirectly, from the disclosing Party or any other associated company or entity to the receiving Party unless the disclosing Party has confirmed in writing its non-confidential character. Such Confidential Information includes, but is not limited to, information relating to each Party's customers/clients, trade secrets, correspondences, notes, reports and data relating to such Party's business, its strategic and business planning and information regarding its current or new products or services. Confidential Information does not include information which: (i) is publicly known at the time of disclosure or becomes publicly available after disclosure by the disclosing Party other than as a result of a breach of this Agreement, (ii) the receiving Party can show was known to it, other than under an existing obligation of confidentiality or restricted use, prior to its disclosure by the disclosing Party, or (iii) the receiving Party can show was made available to it by a third party who had a right to do so and who has not imposed on the receiving Party any existing obligation of confidentiality or restricted use in respect thereof.
7.2. All inventions, designs and trademarks, as well as catalogues and price lists are and shall remain the sole property of the Seller and are protected by intellectual property rights or other property rights. Any reproduction, modification or other use of those without the prior written consent of the Seller is strictly prohibited and can give rise to a claim for damages by the Seller, as well as the imposition of any other sanction at the Seller’s choice.
Article 8 – Liability on the basis of the sale
8.1. The Client undertakes to carefully and entirely inspect each delivery of Products and verify upon delivery the quantity of the delivered Products and their conformity with the Contractual Specifications. Unless stipulated otherwise in the Contract, any complaint regarding the quantity of the Products delivered or patent defects in the Products must be submitted to the Seller in writing, within a maximum period of 10 (ten) working days from delivery and by means of the “complaint form” of the Seller, which may be obtained at email@example.com. After this deadline, the Client may no longer introduce any claim regarding such defects. The Seller may only be liable for replacing the Product acknowledged as lacking conformity.
The return of Products to the Seller is prohibited without the prior consent of the sales department of the Seller. In case of agreement, the “complaint form” used for the introduction of the complaint shall be attached to the returned Products. Unless otherwise agreed, any return of Products will be done at the Client’s expense.
8.2. The Seller can be held liable to the Client for any hidden defect in the Products notified within 8 (eight) business days from the discover. This guarantee runs for 1 (one) year after the delivery of the Product (unless when the Product is not manufactured by the Seller, in which case the period of guarantee is the one provided by the supplier).
8.3. Subject to the conditions of article 8.2, the Seller guarantees to replace the Products acknowledged as defective by the Seller’s technical department, to the exclusion of any damages. The return of Products to the Seller is prohibited without the latter’s prior consent. Any guarantee claim must be pursued using the “complaint form” which may be obtained at firstname.lastname@example.org. Performance by the Seller of its obligations does not have the effect of extending or renewing the initial guarantee mentioned in Article 8.2.
8.4. In accordance with Articles 1641 to 1649 of the Civil Code, the Seller shall only be liable for hidden defects notified in accordance with the applicable statutory provisions. Moreover, the Seller shall not be held liable for hidden defects it can prove were absolutely undetectable.
8.5. In addition, the Seller shall not be held liable for the following :
- Scratches, chips or marks in the packaging which are not noticed upon delivery, with the exception of material defects acknowledged by the Seller’s technical department ;
- Defects caused by normal use ;
- Defects caused by a handling error on the part of the user ;
- Defects caused by the incorrect installation of Products ;
- Defects resulting from insufficient or lack of maintenance or improper maintenance ;
- Defects caused by the addition of accessories or other components that do not conform to the technical specifications for the Products supplied by the Seller ;
- Defects resulting from installation, dismantling or repairs carried out by unqualified persons or with parts not supplied or approved by the Seller ;
- Defects resulting from the use of Products or an installation that does not conform to the Seller’s operating and maintenance instructions.
8.6. If the Products are purchased by the Seller from other manufacturers, the Seller shall offer no additional or more extensive guarantees than those offered by the suppliers or manufacturer of the Products in question.
Article 9 – Manufacturer’s liability for defective products
9.1. For Products manufactured by the Seller or sold under one of its trademarks, the Seller’s liability for damage caused by a defect in such Product is excluded, pursuant to Article 10 §2 of the Act of 25 February 1991 on liability for defective products, when the damage was caused jointly by a defect in the Product and negligence on the part of the injured party or a person for whom this party is responsible. The Seller can under no circumstances be held liable when its Products are not used in accordance with their normal or intended use.
9.2. If the Client wishes to resell the Products, it undertakes to exclude the Seller’s liability in the agreement it enters into with its Client, in accordance with Article 9.1. of these general conditions.
Article 10 – Limitations on liability
10.1. Regardless of the seriousness of the offence, including gross negligence aside from fraud, the Seller’s liability is limited – notwithstanding the legal basis – to an amount equivalent to the consideration effectively paid by the Client within the 12 (twelve) months preceding the Client’s claim in relation to the relevant Products delivered under the Contract. No other damage can be attributed to the Seller. The Seller can under no circumstances be held liable for any indirect or consequential damage.
10.2. The Seller can under no circumstances be held liable for any defect or delay in the performance of its obligations resulting from an event of force majeure. If the Seller is affected by an event of force majeure, it will notify the Client in writing of the event and the expected consequences thereof. If the event of force majeure continues for a period of more than 3 (three) months after the aforementioned notification and is not capable of being remedied, the Client can terminate the Contract by means of a written notice to the Seller, sent by registered mail with an acknowledgment of receipt.
10.3. The limitations on the Seller’s liability provided for in the preceding paragraphs shall extend to its employees, collaborators, agents, consultants, sub-contractors, representatives, suppliers and delivery personnel.
Article 11 – Assignment
The Client cannot assign or transfer any of its rights or obligations under the Contract, in whole or in part, to a third party without the Seller’s prior written consent. Any transfer or assignment without the Seller’s prior written consent shall be deemed null and void. The Seller reserves the right to transfer its accounts receivable to a factor. In this case, the account debtor will be notified of the assignment, in accordance with the provision of Article 1690 of the Civil Code, by means of a notice on the invoice.
Article 12 – Data Protection
Article 13 – Final provisions
13.1. The Contract is governed exclusively by Belgian law, to the exclusion of the United Nations Convention on contracts for the international sale of goods (Vienna Convention of 11/04/1980).
13.2. If a provision of the Contract if found to be unlawful, invalid or unenforceable, in whole or in part, pursuant to applicable law, this provision shall be deemed not to form part of the Contract, and the legality, validity or enforceability of the rest of the Contract shall not be affected. Each party undertakes to immediately negotiate in good faith a valid replacement provision having similar or equivalent economic effect.
13.3. Any dispute concerning the conclusion, validity, interpretation, performance or termination of the Contract.