GENERAL CONDITIONS OF SALE
- Unless otherwise stipulated in writing, any offer, order or agreement of the customer with GOURMAND shall be governed by these terms and conditions, which form an integral part thereof and which ipso jure shall take precedence over the purchase terms and conditions of the customer. Any departure from or amendment to these terms and conditions may only be invoked against GOURMAND if GOURMAND has expressed its consent in writing.
- All prices, quotations, brochures, catalogues or proposals are without obligation and without any commitment on the part of GOURMAND.
- All purchase orders received by GOURMAND shall be considered as final, binding on the customer and irrevocable.
- An agreement shall only be concluded after GOURMAND has confirmed the order or signed the sales contract. The agreement binds the parties irrevocably.
- Except where the agreement specifies a fixed quantity, a fixed price and a fixed period of time, GOURMAND may at any time adjust the agreed prices to take account of changes in the cost price of goods, such as the cost of raw materials, the price of electricity, oil, gas, labour, etc. When orders are executed without prior written agreement on price, the prices on the day of delivery apply.
- The full or partial cancellation of the agreement can only be done with the written consent of GOURMAND. Requests for cancellation of orders shall be assessed by GOURMAND without obligation. If the customer nevertheless cancels the agreement, GOURMAND shall be entitled to dissolve the agreement at the expense of the customer by registered letter to that effect without notice of default and without judicial intervention. In that event, the customer is legally obliged to pay
compensation, the minimum amount of which is fixed at 25% of the price, excl. VAT, without prejudice to GOURMAND's right to demonstrate additional damage.
- All sales are deemed to have been made at the registered office of GOURMAND.
2. DELIVERY AND DELIVERY DATE
- Unless GOURMAND and the customer have expressly agreed otherwise, delivery shall take place after full payment of the price.
- GOURMAND reserves the right to deliver quantities of the goods sold with a difference of plus/minus 5%.
- The agreed delivery dates are indicative and do not bind GOURMAND rigidly. Any delay, if not truly unreasonably attributable exclusively to GOURMAND, shall not give rise to cancellation of the order and/or dissolution of the agreement and/or to GOURMAND being liable to pay any compensation to the customer.
- Changes to orders made at the request of the customer shall extend the delivery period ipso jure by the period of time necessary for GOURMAND to comply with this change. If the due date for the payment of advances is exceeded then ipso jure the number of days overdue shall be added to the delivery term.
- The customer shall take all necessary measures to ensure that the goods can be delivered at the agreed place of delivery. These measures, inter alia, relate to the accessibility of the site, the availability of staff, etc. The customer shall be liable to GOURMAND for any damage caused by non-compliance with this obligation.
- If the customer refuses or makes the delivery of the goods impossible despite a notice of default, GOURMAND ipso jure may opt for the dissolution of the agreement to the detriment of the customer, who shall be informed thereof by registered letter. If a partial delivery has already taken place and the customer refuses further delivery or makes it impossible then, provided that the customer has been informed by registered letter, GOURMAND may opt for invoicing the partial delivery already executed and for dissolution of the contract at the customer's expense for the as yet non-delivered part. In such cases, the customer shall be liable to pay compensation the minimum amount of which, taking into account the potential damage, shall be fixed at 25% of the total price, or, where applicable, of the price of the goods not yet delivered, without prejudice to GOURMAND's right to claim compensation for further damage suffered and demonstrated.
3. DELIVERY AND DELIVERY DATE
- Unless GOURMAND and the customer have expressly agreed otherwise, the responsibility and risk for the goods shall pass to the customer as soon as the agreement is concluded and, to the extent that the goods cannot be determined by number or weight, as soon as they are individualised.
- The goods shall remain the property of GOURMAND until full payment of the price and appurtenances has been made. Until such time, the customer undertakes not to alienate, pledge and/or encumber the goods with sureties. If, despite this prohibition, the customer nevertheless alienates, pledges or encumbers with sureties those goods subject to the retention of title, the retention of title by virtue of commercial subrogation shall apply to the claim (in relation to the purchase price) with respect to the third buyer. The retention of title shall also still apply when the delivered goods have been processed or mixed with other goods.
- Unless GOURMAND and the customer expressly agree otherwise, the goods ordered will be delivered ex works / warehouse and transported at the risk and hazard of the customer. The goods are accepted at the place of delivery.
4. INVOICING AND PAYMENT
- The contract price shall be invoiced and shall be payable in accordance with the stipulations laid down in the special terms and conditions. If no payment term is permitted in the special terms and conditions, then the invoices are payable in cash. Even if this is not expressly provided for in the special terms and conditions, GOURMAND shall at all times be entitled to demand cash payment upon delivery or to make delivery subject to the prior payment of an advance.
- Invoices are payable at GOURMAND's registered office, on the due date and without discount. All complaints concerning an invoice must be made within 8 days of the invoice date, by registered and reasoned letter, otherwise they cannot be pursued.
- The price ipso jure is increased by all taxes and duties levied or to be levied by any government, as they are applicable on the day of delivery.
- In the event of non-payment by the due date, interest shall be due ipso jure and without notice of default as from the due date, calculated at the interest rate determined in accordance with Article 5 of the Act of 02/08/2002 on combating late payment in commercial transactions.
- In the event of full or partial non-payment by the due date and after a registered notice of default, each amount due shall be increased ipso jure by 12%, with a minimum of EUR 100.00 per invoice, by way of a conventional penalty clause, as fixed compensation for extrajudicial costs. As from the registered notice of default, this fee shall be increased ipso jure by the conventional interest rate stipulated in Article 4.4.
- In the event of late payment after the due date, and following a notice of default by registered letter, GOURMAND may always opt for the ipso jure termination of the contract at the expense of the client, subject to notice to that effect by registered letter. In that case, GOURMAND shall recover the delivered goods from where they are, and the customer shall be obliged ipso jure to pay damages, the minimum amount of which shall be fixed at 25% of the price excluding VAT, the excess amount to be demonstrated by GOURMAND.
- Likewise in the event of non-payment by the due date, GOURMAND reserves the right to cancel the part of the delivery still to be delivered or to suspend the delivery, this decision to be communicated to the customer by registered letter. In the event of cancellation, the same compensation shall be due as specified above. Furthermore, in such as event, any amount still owed by the customer shall become due and payable ipso jure and without notice of default.
- The payment without reservation of (a part of) an invoiced amount is considered as acceptance of the invoice. Reductions to the amount owed shall always be accepted subject to all reservations and without adverse recognition, and shall be attributed first to any legal costs incurred, then to the interest due, then to the compensation clause, and finally to the principal sum.
- GOURMAND shall be entitled to exercise a right of lien on all the customer's goods in its possession for all sums due to it.
- When objective elements (such as protested bills of exchange, cancellation of credit, preserving or executive attachments, arrears against creditors, etc.) point to the customer having liquidity problems, GOURMAND is entitled to make its commitments subject to obtaining adequate guarantees.
- Except with the written consent of GOURMAND, the amounts owed by the Customer to GOURMAND cannot be offset in any way against any amount the Customer can claim from GOURMAND. Similarly, such claims of the customer cannot be invoked by them to postpone or suspend their payment obligations towards GOURMAND.
5. CONFORMITY OF THE DELIVERY
- GOURMAND undertakes to deliver the goods which are in accordance with the purchase agreement or the accepted offer.
- GOURMAND shall make reasonable efforts to deliver the goods in accordance with the given specifications (if applicable). However, the customer accepts that the goods are natural products, which mean that the specifications are always only indicative and can vary from time to time. A variation in a specification may under no circumstances give rise to a claim by the customer for damages or a reduction in price on the grounds of a non-conformity. Nor does this entitle the customer to cancel, suspend or terminate the agreement (in whole or in part).
- The customer must check the quality and quantity of the goods upon receipt of the deliveries.
- The burden of proof with regard to the non-conformity of the delivered goods rests with the customer. The customer must provide proof that the lack of conformity was at least present at the time of the delivery of the goods.
- Complaints about visible defects are only valid if (i) the customer notifies them in writing immediately after delivery of the goods (in any event within 24 hours), and (ii) the goods in question remain unprocessed and are still available for inspection by GOURMAND. Any visible defects which are not reported to GOURMAND in writing within the period specified above shall be deemed to have been accepted by the customer.
- Complaints relating to hidden defects are only valid if the customer notifies GOURMAND of them in writing, with the necessary supporting documents, within three days of a defect (i) being discovered or (ii) could reasonably have been expected to have been discovered, and provided that the goods are still available for inspection by GOURMAND.
- If a complaint is made in accordance with Article 6.1 or Article 6.2 then GOURMAND, in accordance with its internal procedure, shall examine the supporting documents from the customer and immediately inform the customer of the further settlement procedure. Any nonconformity can only lead to replacement of the goods if they are recognised as defective and/or non-conforming.
- If GOURMAND acknowledges the defect, it has the choice between delivering replacement goods and issuing a credit note. Any compensation payable by GOURMAND shall always be limited to no more than the amount of the purchase price (excl. VAT) of the goods which gave rise to the complaint, notwithstanding the nature and importance of the injury and the complaint. Nor does this entitle the customer to cancel, suspend or terminate the agreement (in whole or in part).
- GOURMAND's guarantee undertaking has been entered into personally in respect of the customer. Therefore, if the customer transfers the delivered goods to third parties, these third parties cannot invoke the guarantee directly vis- -vis GOURMAND.
- The total liability of GOURMAND shall always be limited to no more than the price (excl. VAT) of the goods that have given rise to the liability. This limitation of liability applies regardless of whether the act or omission was committed by GOURMAND or its agent, regardless of the applicable liability regime including, but not limited to, contractual liability, liability in tort, nofault liability, product liability, liability for hidden defects, and even in the case of gross negligence on the part of GOURMAND and, in addition, in the case of gross negligence and wilful misconduct on the part of its agent.
- In no event shall GOURMAND be liable for any loss of profits, loss of turnover, loss of customers, loss of orders or revenue, loss of goodwill, loss of spent management time, financial loss or any other consequential loss of any kind.
- In the event of "extraneous cause" (Article 1147 of the Civil Code), even if it does not lead to permanent and/or absolute impossibility of the execution of the agreement, GOURMAND shall be authorised ipso jure to suspend or even unilaterally cancel its commitments, after having informed the customer thereof. If applicable, GOURMAND can under no circumstances be held liable for damages. The following are conventionally considered as "extraneous causes" (force majeure): accidents, damage within the Company, difficulties in making the goods available at the place of delivery, strike or lock-out, exceptional weather conditions, fire, natural and other disasters, exceptional scarcity of raw materials, government decisions affecting the fulfilment of obligations, and this when this extraneous cause occurs at GOURMAND or at its suppliers.
- The customer acknowledges that it has taken note of this agreement in all its written and printed provisions. It acknowledges that these documents constitute the full text of the agreement between the two parties, and that all prior oral or written proposals for commitments and/or documents emanating from it are replaced or wiped out, together with any other communication made until now between the parties concerning the content of this agreement. If it should be determined that one or more stipulations cannot be invoked towards the customer in whole or in part, then the other stipulations of the agreement shall remain in full force and effect.
9. APPLICABLE LAW AND COMPETENT COURTS
- In the event of a dispute, only the competent courts of the Kortrijk district are competent. The customer can only bring GOURMAND before these courts. This also applies in the event of urgency (e.g. summary proceedings). However, GOURMAND can always choose to appear before another court that has territorial jurisdiction by virtue of Article 624 of the Judicial Act.
- The use of bills of exchange does not imply any novation and, therefore, does not imply any change in the competence or other contractual conditions.
- Belgian law is applicable, and for everything that is not explicitly regulated here, reference is made to common law. The applicability of the Vienna Sales Convention and the New York Convention on the statute of limitations for international sale of goods is expressly excluded.