ARTICLE 1 – DEFINITIONS
In these General Terms and Conditions, the following definitions shall apply:
Offer: any offer of goods by HEATSAIL to a buyer on a fair, in a catalogue, in leaflets or otherwise.
General Terms and Conditions: the present General Terms and Conditions, as applicable on any offer from HEATSAIL.
Buyer: any legal entity or professional who, for professional purposes only, acquires or uses goods marketed by HEATSAIL.
Goods: any and all material goods that are the subject of an agreement, as well as any and all material results of the provision of services by HEATSAIL.
Force majeure: a situation in which a shortcoming cannot be imputed to HEATSAIL or to the buyer, since neither of them can be held responsible for the shortcoming nor can they be held accountable for it by virtue of law, legal act or generally accepted practice.
Agreement: any agreement regarding the sale of goods between a buyer and HEATSAIL.
Price: the price of a good offered, as set out in Article 5 of the General Terms and Conditions.
Sale: a system organized by HEATSAIL for selling goods and/or services to buyers.
ARTICLE 2 – SCOPE
1. In these General Terms and Conditions, “HEATSAIL” refers to HEATSAIL NV, with registered office at Prins Boudewijnlaan 7A08, 2550 Kontich, Belgium, company number 0845.705.287.
2. These General Terms and Conditions shall assume precedence over any terms and conditions of the buyer or of any third party.
3. The General Terms and Conditions shall apply to each Agreement and/or quote between HEATSAIL and the buyer and shall form an inseparable part thereof. The General Terms and Conditions can be consulted on the reverse side of each quote or invoice as well as on HEATSAIL’s website, and they can be obtained upon simple request.
ARTICLE 3 –CONCLUSION OF THE AGREEMENT
1. An Agreement is concluded when the Offer is accepted by the buyer and the conditions set out therein are met. (see also article 4)
2. HEATSAIL has the right to refuse an order or request or to attach special conditions to the delivery, if it has sound reason to believe that the buyer may not fulfil his obligations. This reason may be a recent bad customer experience of HEATSAIL with the buyer, or it may be that the buyer does not meet the conditions as set out in these General Terms and Conditions or in the Offer.
ARTICLE 4 – QUOTES
1. Unless expressly stated otherwise, HEATSAIL’s quotes are valid for a maximum period of 1 month. Quotes are always drawn up on the basis of data provided by the buyer, and may be subject to change.
2. The buyer shall be bound by each order placed, yet HEATSAIL shall only be bound after an explicit, written confirmation of the order by HEATSAIL or by an authorized representative of HEATSAIL. If prior to the acceptance of a quote, there is any change or reservation with regard to the quote offered by HEATSAIL, an agreement shall only be concluded if HEATSAIL expressly agrees to that change or reservation.
3. If an order is cancelled, the buyer shall owe HEATSAIL flat rate, conventional damages of 30% of the amount of the order/quote, with a minimum sum of 250.00 euros.
4. HEATSAIL’s General Terms and Conditions as well as the instructions for use/user’s manual as provided by HEATSAIL and meant for the specific products manufactured and provided by the same, such as DOME, form an inseparable part of the Agreement and therefore of the General Terms and Conditions.
5. By signing the Agreement, the buyer confirms that he has read both (i.e. the General Terms and Conditions and the instructions for use/user’s manual), that he accepts them and agrees to them.
ARTICLE 5 – PRICE
1. The Price shall be stated in the quote in a written and unmistakable manner and shall be given in euros.
2. Unless stated otherwise, the price shall include VAT. Any contingent printing errors or misprints, any changes in the price due to changes of VAT rates and/or other legal levies shall also be taken into account.
3. HEATSAIL shall not increase the price between the time of conclusion of the Agreement and the delivery, unless:
A) the price increase is a result of legal regulations or of changes in prices imposed by the manufacturer; or
B) the buyer wants changes to be made in the Agreement after the conclusion thereof; or
C) a manifest error was identified.
4. Prices as stated in the quote by HEATSAIL do not include the costs of transport and delivery.
ARTICLE 6 – DELIVERY
1. All delivery dates and periods are stated in good faith. A failure to meet the set delivery time does by no means make HEATSAIL liable, and neither shall it give cause for the payment of damages or interests or for a refusal to accept the Goods. Nor shall it constitute grounds for a termination of the Agreement.
2. The delivery shall take place at the buyer’s expense and risk.
ARTICLE 7 – CONFORMITY
1. HEATSAIL shall assure that the goods have all the features as are required for normal use and under all circumstances (i.e. that they are sound and in proper working order), as well as for particular use, in so far as agreed upon and in accordance with the instructions for use/user’s manual which form an inseparable part of the Agreement. HEATSAIL shall not be bound by any public statements made regarding any special features of the Goods, if HEATSAIL can prove that the said statement was not known or could not reasonably be known, that the statement had been corrected before the conclusion of the Agreement or that the decision of purchase of the Goods could not have been influenced by that statement.
2. The buyer is responsible for the accuracy of any data provided by him, and he shall check these data on the order form.
3. In the event of any visible defect, the buyer shall inform HEATSAIL hereof within 8 days from delivery, in writing, by registered mail. Failing this, the complaint is inadmissible. (see also article 9)
4. If the delivered product has any hidden defect, the buyer shall inform HEATSAIL hereof by registered mail within 5 days after the hidden defect was revealed or such revelation could have reasonably taken place. Failing this, the complaint is inadmissible. (see also article 9)
ARTICLE 8 – FORCE MAJEURE
1. A party cannot be held liable for non-fulfilment of its obligations, if it can prove that:
– The non-fulfilment was attributable to an obstacle beyond its control, and
– That at the moment of conclusion of the Agreement, it could not be reasonably expected of them to take into account such obstacle or its consequences on their ability to fulfil their obligations, and
– That the party could not have reasonably prevented or removed the obstacle.
2. As soon as a party becomes aware of such an obstacle, it shall inform the other party hereof without delay. The other party shall likewise be informed if the ground for the release of the obligations ceases to exist. Failing such notification, the defaulting party shall be liable for compensation of any damage that could have otherwise been precluded. (see also article 13)
3. Any ground for release under this article shall discharge the defaulting party of the liability for damages, fines and other contractual sanctions, with the exception of the obligation to pay interest on the amounts due for as long as and insofar as such ground remains.
4. If the grounds for release of liability persist for more than 6 months, either party has the right to terminate the agreement by means of notice. (see also article 13)
ARTICLE 9 – WARRANTY
1. HEATSAIL acts as a producer/seller only, not as an installer or advisor. Hence HEATSAIL can never be held liable by the buyer or any other subsequent customer for any shortcoming resulting from the installation of the product or the place of installation of the product, since HEATSAIL does not at all contribute to the same. HEATSAIL refers to the detailed instructions for use/user’s manuals of its products, which form an inseparable part of each sales agreement and which are signed as ‘read and approved’ by the buyer. HEATSAIL also presumes the expertise of the buyer and the product know-how of the buyer’s installer and/or adviser, irrespective of any opinions of HEATSAIL’s representatives/appointees or of HEATSAIL itself, and irrespective of any question posed to HEATSAIL’s representatives/appointees or to HEATSAIL itself. The buyer is obliged to check the local regulations regarding conditions for installation and applicability of the products and to comply with such. HEATSAIL can by no means be held responsible or liable for the same.
2. The buyer explicitly undertakes to inform any subsequent customer of the content of art. 9.1 and to assert the same to any subsequent customer transferring this commitment. The buyer hence undertakes to act as a voluntary third-party intervener to indemnify HEATSAIL against all liability ensuing from any shortcoming in the installation of the product or from noncompliance with the local legal requirement regarding the installation, the use or the conditions for application.
3. The warranty depends on the type of product and shall be stated in the relevant quote.
4. HEATSAIL provides the buyer with a manufacturer’s warranty for each lack of conformity existing at the moment of delivery of the Goods. This means that in the event of any flaws or defects of the good under normal use, up to 1 year from delivery, HEATSAIL shall repair or replace the good free of charge. Components and working hours are free of charge. In the event that HEATSAIL needs to intervene on site, call-out, travel and overnight expenses may be charged as the warranty does not cover these costs. Any defects or damage as a result of incorrect use, water, oxidation, drops or impacts, negligence, improper maintenance or use contrary to the manufacturer’s instructions or the user’s manual as provided by HEATSAIL, as well as wear and tear, are not covered by the warranty.
5. HEATSAIL’s liability towards the buyer is therefore expressly limited to its warranty obligation. Any claim on account of loss of profits
and/or any other form of indirect and/or other types of consequential damage is excluded from the warranty. (see also article 8.1)
6. The buyer shall inform HEATSAIL of the lack of conformity of the Goods, in writing and by registered mail, at the latest within 15 days
after having identified the lack of conformity. After this period, HEATSAIL shall no longer answer for such defects. The period is shortened to 48 hours in the event of visible defects. (see also art. 7.3 and 7.4)
7. The warranty shall not apply if the goods were modified or revised by third parties without prior written consent of HEATSAIL.
ARTICLE 10 – PAYMENT
1. HEATSAIL’s invoices and/or claims are to be paid at its registered office in 2550 Kontich, Belgium, Prins Boudewijnlaan 7A08. Payments shall be made punctually and in accordance with the terms of payment in the Agreement and the relevant invoices.
2. Failing payment of invoices or advances by the due date, a late payment interest shall be due by operation of law and without notice of default, at a rate of 12% p.a. as from the due date, and HEATSAIL shall have the right to claim conventional, flat rate damages of 10% of the total due sum, with a minimum amount of 300.00 euros.
3. HEATSAIL shall likewise have the right to suspend its further contractual performance, or to dissolve the agreement to the detriment of the buyer. In such an event, the buyer cannot lay claim to any damages. Any payments already executed shall not be returned.
4. If it is established that the buyer is insolvent and/or that the financial situation of the customer involves payment risks, HEATSAIL may dissolve the agreement to the customer’s detriment or may suspend its performance, unless the party involved can provide sufficient guarantees for the fulfilment of its obligations.
5. The buyer is obliged, without delay and at the latest within 8 days, to inform HEATSAIL of any inaccuracies in data provided or data stated anywhere relating to the Agreement.
ARTICLE 11 – RETENTION OF TITLE AND TRANSFER OF RISK
1. HEATSAIL shall retain the title of the Goods delivered to the buyer until the latter has paid in full, without affecting the buyer’s rights pertaining to him by operation of law. The ownership of the purchased goods is transferred to the buyer only after he has paid the purchase price to HEATSAIL in full. Prior to the transfer of title, the buyer does not have the right to dispose of the Goods or to sell, convert, transfer or encumber them.
2. The parties agree that the Goods can only become immovable by designated purpose or incorporation after a full and correct payment by the buyer.
3. The risk of damage, destruction or disappearance of the Goods is transferred onto the buyer at the moment of delivery of the Goods. If the buyer refuses to immediately accept undamaged goods delivered to him in a correct manner, any ensuing costs shall be borne by the buyer.
ARTICLE 12 – CONTRACTUAL DEFAULT AND EXPLICIT RESOLUTIVE CONDITION
1. In the event of contractual default, bankruptcy or (the application for) judicial reorganization of the buyer, HEATSAIL shall have the right to terminate the agreement without prior notice of default and without judicial intervention, or to suspend the fulfilment of its obligations, without owing any damages.
ARTICLE 13 – DAMAGES FOR NON-COMPLIANCE WITH THE AGREEMENT
1. In each event of dissolution or termination of the agreement – in full or in part – based on the fault of either of the parties, damages of 30% of the agreed upon price shall be due automatically, by operation of law and without a reminder or notice of default being required.
2. In accordance with art. 1149 of the Belgian Civil Code, HEATSAIL reserves the right to claim additional compensation yet to be
determined for the damage incurred, if such exceeds the above mentioned 30%.
ARTICLE 14 – INTELLECTUAL PROPERTY
1. The buyer shall by no means acquire any intellectual property rights of the purchased goods on the basis of the Agreement.
ARTICLE 15 – DISPUTES
1. Only the courts of Antwerp – Antwerp division are competent to decide on disputes ensuing from the Agreement.
2. The General Terms and Conditions as well as the Agreement are governed by Belgian law.