1. The present General Terms and Conditions of Sale govern all commercial relationships between Dauby NV (‘Dauby’) with registered office at 648 Herentalsebaan in 2160 Wommelgem, and permanent establishment at 86 Uilenbaan in 2610 Wommelgem, with company number 0416.614.010 as the seller, on the one hand, and its customer (‘Customer’), on the other hand, in respect of (i) the goods as specified in the quote(s) approved by the Customer, (ii) included in the purchase orders raised by the Customer, (iii) or otherwise ordered (in writing) from Dauby by the Customer (hereinafter, in all cases referred to as the ‘Products’).
2. The Customer hereby acknowledges and accepts that
(i) the present Terms and Conditions shall govern the agreement between the Customer and Dauby;
(ii) its own general terms and conditions (of purchase) shall not apply. The Parties hereby agree that third parties may be or become involved in the performance of the agreement, with whom the Customer has concluded a direct agreement, such as albeit not limited to providers of delivery services / carriers.
3. Dauby’s quotes shall expire where they fail to be accepted by the Customer within thirty days. The customer’s acceptance of the quote within the validity period constitutes the purchase and sale agreement between Dauby and the Customer, which is subject to the present Terms and Conditions.
4. Dauby shall deliver the Products Ex Works (EXW, Incoterms 2020), Wommelgem (Belgium), unless otherwise agreed in writing, as specified in the quote. The fact that the Customer were to request Dauby to intervene in the delivery shall not affect this.
5. The Parties hereby agree that the delivery times are provided by way of general reference only and should on no account be considered as binding, unless the delivery time was expressly agreed with the Customer at the time of order acceptance. Even where it has been agreed that the delivery times are binding in nature, Dauby shall be within its rights to suspend or delay deliveries in the event of shortages or non-availability of essential products for the manufacturing of products, technical disruptions and machinery defects, or any other instances of force majeure.
6. Where the Customer were to consider the Products delivered to be defective, either because they are not compliant with the order, or because hidden defects, material errors, anomalies in the specifications or dimensions are found to exist, or for any other reason, the Customer shall be required to submit a complaint to Dauby by letter sent by recorded delivery within eight days of delivery of the Products. The Parties hereby agree that no action shall be taken in response to any complaints submitted beyond this period. Where the Customer refuses one or several Products for any of the reasons listed above, Dauby shall be under obligation only to replace the refused Products without any compensation of any kind. Dauby shall be under obligation to take back the Products only if Dauby is responsible for the defects in the Products. The Customer hereby acknowledges and accepts that a complaint shall not be admissible and the termination of the agreement shall not be accepted in – in amongst others – the following cases:
(i) where the Products are not returned in their original packaging;
(ii) where the Products are damaged due to the fault of the Customer or that of a third party (appointed by the Customer).
Purchased Products may be returned only with Dauby’s prior written consent. The Customer shall assume the costs of the return shipment. Dauby shall be within its rights to charge the Customer an administrative processing fee in the amount of 20% of the invoice value.
It goes without saying that the above shall apply without prejudice to any claims under product liability, as set out in the Act of 25 February 1991 on liability for defective products, as amended.
7. Unless otherwise specified in the contract, our invoices are payable in Wommelgem, net and without discount, upon delivery of the Products. All payments must be made in proportion to the Products delivered, with the exception of the advance payment, which must be paid in one instalment. Where delivery has been agreed in the form of several part-deliveries, Dauby shall be within its rights to demand cash payment of the delivery at any time during the course of performance of the contract, even where instalment payments were originally agreed. Payment by bill of exchange or any other form of forward payment shall not alter the conditions described above. Where the Customer is in default of payment on any given invoice, Dauby shall be within its rights to suspend performance of the contract or to terminate the contract and demand immediate payment of all amounts that are yet to mature.
8. The title of ownership over Products delivered or replacement Products shall remain with Dauby until payment of the price for the said Products has been received in full (principal + any interests). The Customer hereby affirms and offers assurances that it will lend its full assistance where Dauby informs the Customer that it is exercising its rights under this retention of title.
9. If, at the time of the formation of the agreement, the Parties agreed that the Customer is to pay a sum upon ordering (by way of an advance payment or otherwise), this sum shall not be refundable, with the exception of the situation where Dauby itself terminates the agreement before the performance thereof commenced.
10. Dauby reserves the right to halt all further deliveries and to demand immediate payment of the orders delivered where it becomes evident that there are concrete indications that the Customer shall not be able to fulfil its (other) obligations vis-à-vis Dauby. In this event, the Customer is not entitled to compensation. The Parties hereby agree that the following non-exhaustive listing may give rise to the suspension of the performance of the agreement, at least until such time as the Customer has fulfilled all its obligations vis-à-vis Dauby:
(i) the fact that the Customer has a bill of exchange in its name protested;
(ii) the fact that the Customer, in spite of notice of default, fails to pay a debt to a creditor;
(iii) the fact that the Customer has been declared bankrupt or is no longer free to manage its assets;
(iv) the fact that the Customer requests unreasonable time limits for the payment of the sums owed;
(v) the fact that the Customer requests a general suspension of payments from its creditors. Dauby shall be free at all times to impose additional (payment) terms and conditions or to terminate other current agreements.
11. For each invoice left unpaid on its maturity date, by operation of law and without notice of default, Dauby shall charge an interest in the amount of 1% of the invoice value per month, plus a flat rate sum in compensation in the amount of 40 euros in compliance with the Act on payment arrears in commercial transactions. Interests due shall be capitalised.
12. Dauby reserves the right to change the Products offered or sold insofar as the characteristics are not material to the Customer or the use for which the product is intended.
13. Dauby’s liability shall be limited to the lowest of the following amounts:
(i) the amount effectively covered by its third party liability insurer, or
(ii) the total amount of the quote approved by the Customer. Under no circumstances shall Dauby be liable for damage caused by the actions of the Customer or any third parties.
(https://www.dauby.be/nl/cookies-policy/) which apply in full.
15. The business relationship between Dauby and the Customer shall be governed only by Belgian law. The Convention on Contracts for the International Sale of Goods shall not apply to the agreements between Dauby and its Customers. Only the courts of Antwerp, Antwerp Division shall have jurisdiction to settle any disputes that may arise between Dauby and its Customers.