CGVGeneral terms and conditions of sale
M.P. DIFFUSION SRL Rue de Waremme 126 B-4530 Villers-le-Bouillet C.C.D. 0441.846.282 (hereinafter the “seller”)
Article 1 - General provisions
1.1. These general terms and conditions govern all contractual obligations between the seller and the buyer (agreements, deliveries, services, offers, etc.) for the entire duration of the business relationship. In its relationship with the seller, the buyer accepts these general terms and conditions with its order and explicitly waives the application of its own general terms and conditions, even if these are drawn up after the present general terms and conditions. Any deviation from the present general terms and conditions must be expressly agreed in writing in advance and signed by the seller in order to be valid. The seller's general terms and conditions shall apply even if the seller has delivered the goods to the buyer without reservation in the knowledge of contrary or different general terms and conditions.
1.2. Telephone or oral agreements require written confirmation by the seller to be valid. Orders, agreements and commitments are only binding on the seller if they have been confirmed in writing by the seller (confirmation of sale).
1.3. The interpretation of the commercial clauses shall be in accordance with the commercial practices in Liege and the “Incoterms” of the International Chamber of Commerce in their current version.
1.4. By submitting an order or signing the agreement or purchase order, the buyer expressly acknowledges having read and unreservedly accepted the present general terms and conditions. These general terms and conditions supersede and cancel all previous general terms and conditions applicable between the parties.
1.5. The present general terms and conditions form an integral part of the contract with the buyer. All provisions that conflict with the clauses below, including the general terms and conditions transmitted at any time by the buyer, shall be considered as null and void and not accepted unless otherwise agreed in writing beforehand. When a specific supply agreement is concluded between the parties, the latter shall take precedence over these general terms and conditions of sale which, if need be, shall supplement said agreement.
1.6. Failure to implement a clause laid down in the present terms and conditions may not be interpreted as a waiver by the seller to use it.
Article 2 - Title retention clause
2.1. The seller retains ownership of the products sold until full and final payment of the related price and its accessories (potential costs, interest, penalties, etc.). The further processing of the sold products does not affect the seller’s right of retention of title. The seller is entitled to take back the products if the buyer behaves in a manner contrary to the terms of the contract. In this case, the products must be returned immediately, in its indisputable condition, and upon simple written request by the seller. Any related costs shall be borne by the buyer.
2.2. The buyer is obliged to treat the purchased products with care as long as the ownership has not yet passed to him. In particular, he is obliged to insure the goods at its value and at his own expense against theft, fire and water damage. If maintenance and inspection work have to be carried out, the buyer is obliged to execute the work as soon as possible and at his own expense. As long as ownership has not yet been transferred, the buyer must inform the seller immediately in writing if the products delivered are seized or subject to other interventions by third parties. The buyer is not entitled to pledge the products subject to retention of title to third parties or to assign them as security.
2.3. Unless otherwise provided for in the delivery agreement signed with the buyer, the latter shall be entitled to resell the products in the ordinary and reasonable course of its main business. The buyer hereby already assigns to the seller its claims arising from the resale of the products subject to retention of title in the amount of the invoice agreed with the seller. This assignment shall apply regardless of whether the purchased products were resold without or after processing. The buyer remains entitled to collect the claim even after the assignment. Nevertheless, the seller remains entitled to collect the claim himself. However, the seller will not collect the claim as long as the buyer meets his payment obligations, is not in default of payment and, in particular, no application for the opening of insolvency proceedings against the buyer's assets has been filed and no suspension of payments has occurred.
2.4. However, the buyer is entitled to process the products in the ordinary course of business. The processing or transformation of the products by the buyer shall always be carried out in the name of the seller and for his account. In this case, the buyer's right to the subject matter of the sale shall remain in the processed product. If the goods are processed with other objects which are not the property of the seller, the seller acquires ownership of the new object, provided that the seller's goods are the principal goods in terms of volume or value or represent the highest value at the time of processing. If the goods are inseparably combined or mixed with other objects not belonging to the seller, the latter acquires ownership of the new object, provided that the seller's goods are the principal goods in terms of volume or value or represent the highest value at the time of the combination or mixing. In all other cases of processing or mixing, the seller acquires undivided co-ownership of the new object in the proportion of the objective value of the seller's products to the other objects at the time of processing/transforming/mixing/merging. The buyer retains the ownership of the objects thus created for the seller. In order to secure the claims of the seller against a third party in respect of the incorporation of the products into an immovable object, or in the event of the sale of the seller's products (processed, transformed, mixed, merged) to a third party at a time when the purchase price has not yet been paid by the buyer, the latter assigns the proceeds of the sale to the seller in the amount of the unpaid price; the seller hereby accepts this assignment.
2.5. The seller reserves the right to register its retention of title to the products or its pledge on the processed or partially finished materials in the National Pledge Register, in accordance with the Law of 11 July 2013 relating to collateral security on movable property (“Loi du 11 juillet 2013 relative aux sûretés réelles mobilières”).
2.6. In the event that the products are incorporated into processed or partially finished materials (the products having in such case become inseparable by their incorporation), the buyer recognises irrevocably and from the beginning of the process of incorporation, a pledge to the seller, established according to the rules of the Law of 11 July 2013 relating to collateral security on movable property, on the processed or partially finished materials until full and final payment of the products sold and all its accessories. In such a case, the seller is therefore considered as a preferred creditor on the processed or partially finished materials and the buyer (pledgor) authorises the seller to acquire them without formalities and at the expense of the buyer. The exercise of the pledge by the seller, in this case the sale of the processed or partially finished materials to a third party, is contingent upon the seller refunding the buyer, or any person designated by it, the difference between the balance of the sale of the processed or partially finished materials and the amount of its claims, including any contractual penalties and default costs. This refund will be made upon receipt of the proceeds from the sale of the processed or partially finished materials encumbered with the pledge. The secured claim is capped at the selling price of all products subject to non-payment, plus interest and costs.
2.7. In addition, pursuant to Article 24 of the Law of 11 July 2013 relating to collateral security on movable property, the pledge follows the encumbered products regardless of ownership and whatever their form. This resale right may be combined with a possible subrogation to compensate for the total damage suffered by the seller. With a view to recovering its claim, the seller shall subrogate to the rights of the buyer who sold the processed or partially finished products and/or materials without settling its claim against the seller and which the buyer is entitled to against its debtor or debtors. The pledge and retention of title apply to all claims that take the place of the goods subject to a pledge, including claims arising from their assignment, as well as claims that compensate for a loss, deterioration or reduction in value of the goods subject to a pledge.
2.8. In addition, the buyer is obliged to identify and physically and irremovably mark the products delivered as the property of the seller, or to leave the original sales mark of the seller or its producer, to store them separately from other materials and not to allow third parties access to the products in order to guarantee the seller's right to separation from the estate and to the return of the seller's products to the latter in the event of bankruptcy of the buyer. The buyer grants the seller and its employees/agents the right of free access to the buyer's premises/warehouses during normal working hours in order to verify that the products delivered by the seller are marked and stored in accordance with these general terms and conditions. The buyer shall bear all costs associated with the storage, marking and monitoring of the products and the obligations described herein. If the products are not marked and stored as stipulated in these general terms and conditions and cannot be easily identified, the seller is entitled to terminate the contract with the buyer with immediate effect and to claim any damages. Subject to the termination of the agreement concluded between the parties, the buyer shall then be obliged to hand over the products to the seller immediately without any right of retention. Article 2.4. shall remain unaffected.
Article 3. Order / Deadline
3.1. All offers made by the seller are always without obligation, both with regard to price and rates and with regard to the delivery period, and shall only become binding upon the express written confirmation by the seller with reference to a period of validity (confirmation of sale). No penalty may be claimed for late delivery, unless the seller has given its prior written consent. Orders are only binding on the seller if the latter accepts the order in writing (confirmation of sale). In this case, the parties are then contractually bound.
3.2. Confirmations of sale are only binding on the seller if the customs duties (import duties and/or export duties) of the products ordered are the same between the date of the agreement concluded with the buyer and the date of delivery of the products. The seller nevertheless reserves the right to deliver the products to the buyer; the provisions of Article 5 of these general terms and conditions shall apply.
3.3. The delivery periods shall be suspended by operation of law in the event of non-compliance with the terms of payment by the buyer or in the event of delay in the information to be provided by the buyer; the same applies to all cases of force majeure. In particular, the following are considered as such: accidents, strikes, industrial disputes, lock-outs, embargoes, wars, states of war, rebellions, sabotage, terrorist attacks or consequences of attacks, natural disasters, fires, floods, storm surges, other catastrophic storms, earthquakes, landslides, contagious diseases, epidemics and virus pandemics, operating accidents, unforeseeable disruptions in manufacturing conditions, governmental measures, difficulties in the supply of electricity, delays in the delivery of raw materials, shortages of raw materials, scrap, manufacturing disturbances and more generally any event of a similar nature affecting the seller or its vendors and delaying or rendering impossible the performance of their respective obligations. In the event of force majeure, the seller reserves the right to suspend its performance without notice or compensation. In addition, the seller reserves the right to terminate any contract or order in whole or in part.
Article 4 - Acceptance / Delivery / Transport
4.1. Unless otherwise stipulated in the seller's offer, the products are delivered to the buyer “DDP”, according to “Incoterms” 2023. The risk in the products shall pass to the buyer as soon as the products are handed over at the seller's factory or warehouse to the carrier designated by the buyer or the seller. The products are transported for the account and risk of the buyer.
4.2. In the event of seizure, bankruptcy or any other collective proceedings such as judicial reorganisation, court settlement or similar proceedings, the seller shall be entitled to suspend its obligations and/or to terminate the contract concluded with the buyer and/or to claim liquidated damages amounting to 25 % of the agreed purchase price. This lump-sum compensation shall not affect the seller's right to claim additional damages from the buyer, if the actual damage suffered by the seller exceeds the said lump-sum compensation. The seller may require the buyer to return the unpaid products at the buyer's expense and risk.
4.3. Partial deliveries are permitted. Depending on the specificity and/or size of the order, the seller reserves the right to make partial deliveries according to its availabilities.
4.4. In the absence of any special instruction by the buyer, if transport is performed by or via the seller, the transport will be performed at its best without guaranteeing that the least expensive method has been chosen. The seller shall ensure that the packaging of the products is suitable for the respective type of products and transport.
4.5. Transport-related complaints must be addressed directly by the buyer to the carrier, even if it has been selected by the seller, the seller's obligations being limited to the transfer of its rights against the carrier. The buyer must therefore check the condition of the freight and the consignments of the products on arrival in order to be able to claim recourse against the carrier in good time if necessary. Any complaint regarding the products must be made by registered letter within eight days of the date of delivery or installation. No return of the products will be granted without the prior written consent of the seller. If the buyer refuses to accept delivery of the products, the delivery will be stored at the buyer's expense and risk until full payment has been made.
Article 5 - Payment / Credit insurance cover
5.1. The seller's prices do not include (customs) duties or taxes, unless otherwise stipulated in the confirmation of sale or in the contract concluded with the buyer. All (customs) duties and taxes shall be borne by the buyer in accordance with the statutory provisions in force at the time of invoicing. All invoices of the seller shall be paid within the payment period stated in the seller's confirmation of sale. In the case of a sale to a trader, the latter is obliged to pay the seller's invoice immediately (e.g. in cash) as soon as he receives the documents (in particular the seller's confirmation of sale, the invoice or the document containing the release conditions). If the goods are at a warehouse keeper, the seller sends the trader a document with conditional release conditions indicating the validity of the payment (usually a maximum of 5 days). If payment is made in full to the seller's account within the conditional release period, the seller informs the warehouse keeper that payment has been received and the warehouse keeper sends a final release document to the customer so that the latter becomes the owner of the goods and the goods are handed over to the customer. In the event of non-payment within the conditional release period, the seller reserves the right to cancel the contract with the buyer on the day following the last day of the conditional release period. The bank charges for the buyer's payment shall be borne by the buyer. The seller reserves the right to re-invoice the bank charges deducted from the payment received.
5.2. Any non-payment, even partial, on the due date shall entail by operation of law, and without any reminder being required, the obligation of the Purchaser to pay contractual default interest at the rate of 12 % per annum.
5.3. If an invoice is not paid within the due date, the damage caused by default shall be set by mutual agreement at a flat rate of 15 % of the outstanding amount, but at least € 250.00, as a contract penalty. Any failure to pay an invoice on the due date shall render all invoices, including those not yet due, immediately due and payable and shall also entitle the seller to cease any production or delivery, even if previously confirmed. The costs of collection, in particular the costs of sending the buyer a reminder by registered letter and the court and bailiff costs, shall be borne by the buyer.
5.4. In a business relationship with the buyer, any non-payment of an invoice when due shall immediately entitle the seller, without any notice of default being required, to retain all products sold to the buyer up to the amount of the unpaid invoices, even if the products in question were invoiced via different legal transactions
5.5. Any complaint about an invoice must be made by registered letter within 8 days of receipt of the invoice. After this period, no complaint will be accepted and the invoice will be deemed to have been accepted by the buyer. A complaint or a warranty claim does not affect the buyer's obligation to pay the other invoices due at the time of the complaint and does not give him the right to suspend any payment to the seller or to suspend any other obligation towards the seller.
5.6. Any set-off or retention of payments by the buyer is only permitted if the buyer's claim is undisputed or legally established.
5.7. In the event of cancellation of an order by the buyer, the difference between the agreed price and the market price at the time of cancellation shall be payable as a lump-sum compensation, unless otherwise stipulated in the seller's confirmation of sale or in the contract concluded with the buyer. This compensation shall not affect the seller's right to claim additional damages from the buyer, if the actual damage suffered by the seller exceeds the said lump-sum compensation.
5.8. When selling goods to a customer, the seller reserves the right to cancel the order/contract if and to the extent that the cover of the credit insurance taken out by the buyer falls significantly between the time of ordering/signing the contract and the time of delivery of the goods, so that the goods no longer remain adequately insured.
Article 6 - Liability
6.1. The seller makes no warranty as to the quality of goods or their application or use, alone or as an integral part of other products. The seller's liability is limited to the amount of the invoice and of the direct damage. The seller shall in no event be liable for any indirect and consequential damages.
6.2. The seller is never liable for damages resulting from wear and tear, improper use or faulty storage by the buyer or third parties, faulty or negligent handling, overloading or unsuitable equipment. The seller is also not liable for the consequences of the use of a delivery that has an obvious defect. Any advice given by the seller to the buyer is purely indicative and cannot in any way give rise to any liability on the part of the seller. Such advice does not relieve the buyer of its obligation to check the usability of the delivered goods before using them and to use the goods properly.
6.3. For damages that do not concern the delivered products themselves, the seller is only liable:
- in case of fraud and gross negligence; - for personal injury; - according to the Law on liability for defective products (Law of 25 February 1991).
6.4. The seller is under no circumstances liable to the buyer and third parties for compensation for indirect and consequential damages, in particular loss of profit, loss of production, interruption of operations, loss of income/profit, loss of use or of a chance to contract, financial burdens, etc.
6.5. The seller's liability, irrespective of the legal grounds, is in any case limited to 100 % of the net invoice amount in question. The aforementioned limitation of liability shall not apply if liability is mandatory under statutory provisions, in particular liability under the Product Liability Act, and liability for gross negligence or intent. If the seller is liable for fraud or gross negligence, the seller's liability shall be limited to the reasonable damages that were foreseeable at the time of conclusion of the contract.
6.6. The above provisions also apply to the seller's agents or vicarious agents.
Article 7 - Protection of personal data
7.1. The buyer’s personal data are only stored and processed for internal use, excluding any promotional purposes.
7.2. In accordance with the General Data Protection Regulation (GDPR), the buyer may
7.3. The personal data protection policy is available on the seller’s website.
Article 8 - Jurisdiction and applicable law / Miscellaneous
8.1. The present general terms and conditions, as well as the contractual relationship between the parties, are governed by Belgian law. The application of the 1980 Vienna Convention on the International Sale of Goods is expressly excluded.
8.2. Any dispute relating to the formation, execution and interpretation of these general terms and conditions of sale as well as relating to all agreements to which they apply, which cannot be resolved amicably, is subject to Belgian law and to the exclusive jurisdiction of the courts of the judicial district of Liège.
8.3. The French version of these general conditions is the official version and prevails over any other version provided as a translation.
8.4. The invalidity or illegality of one of the clauses provided for in these general conditions or in the contract concluded with the buyer shall in no way lead to the invalidity or nullity of the other clauses or other contractual provisions, which shall remain fully valid and applicable. The parties undertake to negotiate in good faith the drafting of a new clause to replace the clause declared invalid. |
