STRETCH General Terms and Conditions
Scope of these General Terms and Conditions
- All price quotes of, orders with, agreements with and supplies and/or installations performed by/or together with STRETCH BV, with registered office at 309/A3 Gentseweg, 9120 Beveren, registered in the Ghent Register of Legal Entities, Dendermonde Division, and with Company Registration No. 0675.875.709 (email address: firstname.lastname@example.org – +32/(0)3.284.68.18), hereinafter referred to as STRETCH, for the other party, hereinafter referred to as “the client”, shall be exclusively governed by these General Terms and Conditions.
- A deviation from one of the provisions of these General Terms and Conditions shall not affect the other provisions, which shall remain fully applicable.
- A deviation from these General Terms and Conditions shall only apply for one order/task.
- These General Terms and Conditions shall prevail over any General Terms and Conditions of the client.
- The non-applicability and/or nullity of one or more (parts of) provisions of these General Terms and Conditions shall have no consequence for the validity and enforceability of the other (parts of) provisions. Any provision which has no effect, shall be replaced by a valid provision which as closely as possible approximates the presumed intention of the parties.
Price Quote, Agreement and Prices
- The price quotes of STRETCH are valid for 30 calendar days from the date mentioned on the price quote.
- The client shall, both at the commencement of the agreement and during its term, provide promptly all information required for optimum performance of the agreement, and the dimensions required. The price indicated by STRETCH is based on the information provided by the client, and is therefore only an estimate based on the available information or based on the presumed quantities.
- All orders/tasks are accepted subject to the reserve of sufficient stocks and manufacturing capabilities of the suppliers of STRETCH.
- All work and/or products supplied, which were not explicitly foreseen in the price quote and/or agreement, shall be regarded as extra work and/or additional orders requested by the client and shall be invoiced as such to the client. Unless the client issues a protest in writing within 72 hours of performance and/or delivery, works and/or products which are not mentioned in the agreement, shall be irrefutably regarded as extra work and/or additional orders.
- Discounts, if any, shall only be valid for one order/task.
- All prices are not including VAT, and are expressed in Euros.
- All current and future taxes and other costs, levies and/or charges, of any kind (for example: VAT, customs duty, import duty, declaration fees, etc.), shall be paid by the client.
- STRETCH shall not be bound by obvious mistakes or errors in the offer.
- Also, STRETCH may request an advance of 40 % of the total price of each order/task. The client cannot request the supply goods or performance of work by STRETCH before this advance is paid.
- The client cannot derive any rights from images used by STRETCH; these are only added for by way of illustration.
- The agreed price only includes the value of the goods, and does not include transport, installation, technical support and other costs, if any.
Delivery, Performance and Periods
- The dates and delivery times indicated, are provided for information only, and any exceeding of them can never give cause for cancellation of the agreement or payment or compensation to the detriment of STRETCH, nor do they entitle the client to suspend his payment obligations. However, STRETCH does strive to respect the dates and delivery deadlines indicated.
- All deliveries shall be deemed to take place in the warehouses of STRETCH, and the risk of the goods transfers at the time of the goods leaving the warehouses of STRETCH. The dispatch of goods is always at the risk and cost of the client.
- The client must ensure that the works can be commenced immediately at the agreed time. Failing this, the direct and indirect costs arising from the loss of time shall be charged to the client, without prior notification of default.
- STRETCH is allowed to perform partial deliveries and/or issue invoices for supplies and work performed in several tranches. The client is obliged to accept and pay for these partial deliveries before STRETCH proceeds to any further supply or work.
- STRETCH has the right to have the task, or part of it, performed by a third party, as it sees fit.
- The client must provide electricity and water for the site, free of charge. The client shall ensure that the goods, materials and equipment supplied to the site are stored carefully, and provide security and insurance for them.
- If, due to force majeure and/or an external cause, - whether or not foreseeable on the date of concluding the agreement -, it becomes impossible for STRETCH to perform its undertakings, or it is substantially hindered in performance of them, STRETCH can never be obliged to perform or be held liable. Force majeure and/or external cause are interpreted as, for example, (non-limitatively): strike, lock-out, revolt, terrorism, epidemic/pandemic, illness, fire, flood, government measures in general, late supply by the supplier, strike at the supplier, bankruptcy of the supplier, labour shortage, fuel shortage, destruction of machinery, weather conditions, etc. In the event of force majeure and/or external cause, STRETCH has the right to terminate the agreement, without being obliged to pay compensation. Force majeure shall only have consequences for the future. Any advances paid to STRETCH or invoiced by STRETCH shall be regarded as permanently acquired, as a fixed amount for performance and/or supply until that time, without prejudice to the right of STRETCH to charge for anything supplied and/or performed above this, if this is greater.
Liability of STRETCH
- STRETCH can never be held liable for damage or consequential damage on the part of the client if it is a consequence of, or caused jointly by, the client himself, such as (not limitatively): incorrect or incomplete information, delay resulting from acts or negligence of the client, failure to respect the duty to limit damage, performing works by himself (or via others) on the item supplied or installed, structural flaw, age and/or lack of maintenance of the good on which or in which the goods are to be installed, etc. The client is obliged to compensate STRETCH for damage which the latter may suffer as a consequence of the condition of the good, and to indemnify it in respect of third parties. The client undertakes to take out insurance against damage to third parties which may arise during performance of the agreement, and to include in it a waiver of recourse for the benefit of STRETCH. The client cannot approach STRETCH to indemnify it against possible claims of third parties for payment of compensation.
- The client must notify STRETCH of each protest relating to damage, in writing and giving details, within 5 calendar days of its discovery, on pain of forfeit of right.
- The compensation which STRETCH may be obliged to pay on the basis of this agreement, shall be limited to direct and foreseeable damage and, at any event, limited to that which is owed by the client to STRETCH on the basis of the undertakings already performed by STRETCH.
- The client cannot invoke any lien or possessory lien against STRETCH.
Transfer of Ownership, Risk and Client’s Liability
- All goods and works shall remain the property of STRETCH until full payment of the invoices, in principal sum and incidentals. The same applies if the goods or works of STRETCH only form part (side issue) of a larger whole (main issue) of which STRETCH does not hold (part) ownership.
- However, the risk transfers to the client from delivery of the goods. As soon as STRETCH has performed (part of) a work or has supplied (part of) the goods, the client is responsible for all damage incurred by the installed/supplied goods.
- The client is liable to STRETCH for each damage-causing event occurring on the site to the goods, its appointees or its sub-contractors and their materials and equipment, both due to own fault (even the most minor) and for those of persons for whom he is responsible or for those of third parties admitted or tolerated by him at the place of the works. The client shall fully indemnify STRETCH against claims of third parties.
Acceptance of the Works, Flaws, Guarantee
- The client must check the goods for possible visible flaws and for compliance with the order placed, immediately on receipt and/or installation. Visible flaws and non-compliant deliveries must be reported to STRETCH in writing, at latest within 5 calendar days, and the client must describe the flaws in a detailed manner. Failing this, they shall be irrevocably accepted, or, respectively, regarded as compliant with the order. Where it arises, a claim on the basis of visible flaws must be lodged within 3 months of delivery or acceptance, on pain of forfeit.
- On pain of forfeit, the client has 2 months from the discovery in which to report a concealed flaw to STRETCH in writing, and the client must the describe flaws in a detailed manner, and where applicable, the latter must institute a legal claim for concealed flaws within 1 year of the day on which he established the flaw, and at latest within 2 years of the agreement arising.
- The client can only benefit from the factory guarantee on the goods after presenting a valid invoice and/or guarantee card.
- Without prejudice to the other elements of this article, after delivery and/or installation STRETCH can only be approached concerning guarantees which it is bound by compulsory law to provide.
- Each use or consumption, even in part, of a delivery, constitutes acceptance of the entire lot/batch.
Payment, Off-Setting of Debts
- Unless indicated otherwise, invoices for goods and/or installation must be paid at the registered office of STRETCH within 30 calendar days of the invoice date.
- If the client does not agree with an invoice, he must protest it in writing, giving reasons, within 15 calendar days of the invoice date, on pain of forfeit of right. The date on the invoice shall be presumed to be the dispatch date. Payment of the invoice without protest always provides adequate proof of the supply of goods and the work performed, and constitutes unconditional acceptance of the works.
- Late payments shall, lawfully and without notification of default, incur interest equal to 12% per annum, from the due date. Likewise, in the event of late payment, the client shall owe a fixed sum of compensation of 10 % of the agreed price, with a minimum of 250.00 Euros; this damage clause does not cover the costs linked to the collection itself.
- As soon as, and until all amounts owed to STRETCH – of any kind and on any grounds, even those forming part of a different agreement – have been paid on time and in full (principal sum, interest, damage clause and court costs if any) by the client:
1° STRETCH has the right to suspend all other work for and supplies to the client, without advance notification. STRETCH is not liable for damage which may arise from suspension of its activities;
2° the off-setting of debts shall be performed lawfully between fixed and claimable amounts which are owed to each other by the parties, and this for the amount of the smallest amount. However, the client is not permitted to off-set debts. The client may never invoke losses, damage or possible delays in order to suspend all or part of the payments which it owes to STRETCH.
- ‘In writing’ within the meaning of these terms and conditions corresponds to the definition provided in Section 8.1, 1° Civ. Code.
- Failure to respond within 7 calendar days to a document sent by STRETCH or to a different communication medium, shall be deemed as constituting full tacit approval, which shall result in the client’s final acceptance of the contents of the letter.
Governing Law and Competent Court
- The agreement between the client and STRETCH shall be governed by the laws of Belgium..
- Application of the Vienna Sales Convention is expressly excluded.
- The undertakings in this agreement shall be deemed to have arisen at the registered office of STRETCH.
- Each dispute between the client and STRETCH shall fall under the exclusive jurisdiction of the courts of the place of the registered office of STRETCH.