General terms and conditions
1. Unless agreed otherwise in writing, any offer, invoice and (future) contract between Confiserie Vandenbulcke NV, or any of its affiliated companies (the “Seller”), and the customer (the “Customer”) is governed by the present terms and conditions, which form an integral part thereof and which shall prevail and take precedence over the terms and conditions of purchase of the Customer. Such terms and conditions of purchase of the Customer shall not be deemed accepted by the Seller unless the Seller expressly agrees otherwise in writing, and the Customer acknowledges that the Seller’s acceptance of any offer is expressly conditioned upon agreement to these terms and conditions.
Any deviation from or modification of the present terms and conditions can only be relied upon against the Seller provided that the Seller has granted its consent thereto in writing.
The present terms and conditions shall apply to contracts for the sale of products (irrespective of whether they are custom made), as well as to contracts regarding any type of installation, repair or servicing work.
As a result of placing an order, the Customer irrevocably accepts to be bound by the general terms and conditions that are available on the Seller’s website on the date that the order is placed.
2. Unless agreed otherwise in writing, prices, brochures, catalogues or proposals are non-binding and can be changed or amended by the Seller at any time. A contract shall only be effective and binding after written confirmation of the order by the Seller. In case orders are carried out without the Seller’s prior written consent as to the price, prices as indicated in the price list valid at the day of the order shall be applicable.
3. Unless expressly stated otherwise in writing, delivery times mentioned in any written confirmation, contract or other document are indicative only and shall not be binding on the Seller, and delays in delivery shall not be a valid cause for termination of the contract. To the extent permissible under applicable mandatory law, the Seller’s liability for late delivery shall always be limited to direct and foreseeable damages and shall in no event exceed 5% of the contract value (VAT excluded).
Any modification of the order automatically implies that the indicative delivery times may be prolonged. Delivery may be suspended and indicative delivery times may be prolonged in case of any delay in the payment of advance payments as provided by this general terms and conditions or by the order.
4. The Seller retains ownership of all goods and materials until they have been fully paid for. Until such time and without the Seller’s prior written consent thereto, it is strictly forbidden for the Customer to alienate or to pledge the goods, or to let them serve as security or to legally or physically transfer them in any other manner.
Notwithstanding the retention of title, the risks are transferred to the customer at the time of delivery of the goods.
5. Any goods and materials shall be delivered in accordance with the INCOTERMS® 2020 as agreed upon in writing by the Seller and the Customer. If no specific INCOTERMS® 2020 was agreed upon in a separate agreement, all goods and materials ordered shall be delivered in accordance with INCOTERMS® 2020 Ex Works (Warehouse of the Seller). Such goods and materials are accepted at the place of delivery and the risk of loss or damage transfers to the Customer upon delivery (nothwitstanding any retention of ownership). All freight and transportation costs will be borne by the Customer, even if it has been agreed that the Seller will take care of, organize or be otherwise involved in the transport.
It is the Customer’s duty to ensure that all necessary precautions have been taken and all conditions have been met to take delivery at such time as is indicated by Confiserie Vandenbulcke NV. All damage caused because the above has not been complied with, remains solely the responsibility of the Customer.
6. If the Customer refuses to accept delivery, makes it impossible for the Seller to carry out the delivery or substantially delays the acceptance of delivery, the Seller shall be entitled to terminate the contract by giving written notice to the Customer (without there being any need for court intervention or any other formalities) and, as of such written notice, the contract shall be deemed to be terminated on account of a breach by the Customer and compensation shall be due. Without prejudice to the Seller’s right to prove that the actual damage is higher, such compensation shall be deemed to amount, as a minimum, to a fixed sum of 25% – increased to 75% in the case of made-to-measure goods – of the total purchase price exclusive of VAT, which amount represents the Seller’s good faith estimate of its damages and administrative costs in responding to such situation, which the Customer acknowledges are liquidated damages and do not constitute a penalty.
When partial delivery has already taken place before the Customer refuses to accept any further deliveries, and such refusal makes it impossible for the Seller to carry out any further deliveries or substantially delays the acceptance of any further deliveries, the Seller shall be entitled to invoice the Customer for the part of the delivery already made and to terminate the part of the contract relating to the deliveries that have not yet been made, by giving written notice to the Customer (without there being any need for court intervention or any other formalities).
As of such written notice, the relevant part of the contract shall be deemed terminated on account of a breach by the Customer and the Seller shall be entitled to compensation. Without prejudice to the Seller’s right to prove that the actual damage is higher and to claim damages accordingly, such compensation shall be deemed to amount, as a minimum, to a fixed sum of 25% – increased to 75% in the case of made-to-measure goods – of the total purchase price exclusive of VAT, which amount represents the Seller’s good faith estimate of its damages and administrative costs in responding to such situation, which the Customer acknowledges are liquidated damages and do not constitute a penalty.
7. Unless expressly agreed otherwise in writing in a separate agreement, the prices mentioned to the Customer shall not include any governmental taxes, levies or other charges that may become due on account of the sale or purchase of the goods and materials. The Customer shall be exclusively liable to pay such taxes, levies or charges and, if they are charged to the Seller or need to be paid by the Seller as a matter of law, the Customer shall reimburse the same to the Seller without delay.
8. All invoices must be paid into the bank account number as indicated on the Seller’s invoices or such other bank account as the Seller may designate in writing from time to time. Payment must be made in full and without any reduction or deduction and the relevant amount must be available in the Seller’s bank account on the due date indicated on the invoice. In case of delayed payment, a legal and conventional interest shall accrue daily at a rate of 1% per month, which shall apply automatically as from the due date without any notice of default being necessary. The interest due by the Customer shall be capitalized per annum, subject to notice of default thereto by registered mail. If payment by instalments has been agreed to by the Seller and if one of the instalments is not paid or not paid in time, the remainder shall become legally due in full, increased with any interest and any conventional compensation pursuant to points 9, 11 and/or 12 hereafter and any such other compensation as the parties may have agreed to.
9. If any outstanding amount is not paid on its due date and the Seller issues a notice of default by registered mail, any such amount due shall, as of the date of such registered letter, be automatically increased by 12%, with a minimum of € 125 as a fixed conventional compensation, which amount represents the Seller’s good faith estimate of its damages and administrative costs in responding to such situation, which the Customer acknowledges are liquidated damages and do not constitute a penalty. This compensation is subject to the same legal and conventional interest accruing daily at a rate of 1% per month as from the notice of default by registered mail. The foregoing shall not prevent the Seller from proving damage in excess of such amount and to claim damages accordingly.
10. The unconditional payment of all or part of the invoiced amount shall be deemed to be acceptance of the Seller’s invoice.
Partial payments shall always be accepted under reservation of, and without prejudice to the Seller’s rights, and shall be deemed to cover the debts of the Customer in the following order of priority: any legal costs incurred, secondly interest due, thirdly any fixed compensation (as in point 9 hereof or as otherwise expressly agreed) and finally the principal amount.
11. In case of non-payment on the due date and if the Customer has failed to remedy the payment issue after notice of default by registered mail, the Customer shall be deemed to have committed a material breach of contract and the Seller is fully entitled at all times, and without penalty, to terminate the contract on account of such breach with immediate effect. Such termination shall require a notification by registered mail.
General Terms and Conditions – valid as per 06.03.2021
In such case and in consistency with provisions under point 4 above, the Seller will be fully entitled to retrieve the goods and materials from where they are kept, and the Customer shall allow and facilitate such retrieving and shall be bound to pay compensation amounting, as a minimum, to a fixed sum of 25% – increased to 75% in case of made-to-measure goods – of the total purchase price exclusive of VAT, which amount represents the Seller’s good faith estimate of its damages and administrative costs in responding to such situation, which the Customer acknowledges are liquidated damages and do not constitute a penalty. The foregoing shall not prevent the Seller from proving damage in excess of such amount and to claim damages accordingly.
12. In case of non-payment on the due date the Seller shall also be entitled to cancel any outstanding orders or to suspend their performance, of which the Seller will inform the Customer by registered mail. In case of cancellation, the Customer shall be bound to pay compensation amounting to a minimum fixed sum of 25% – increased to 75% in case of made-to-measure goods – of the total purchase price exclusive of VAT, which amount represents the Seller’s good faith estimate of its damages and administrative costs in responding to such situation, which the Customer acknowledges are liquidated damages and do not constitute a penalty. The foregoing shall not prevent the Seller from proving damage in excess of such amount and to claim damages accordingly.
13. In any case of non-payment on the due date, all outstanding amounts of the Customer (irrespective of whether they are due at the time) shall automatically become due. No notice of default shall be required to that effect. Furthermore, the Seller shall be entitled to retain any of the goods ordered by the Customer which are still in the Seller’s possession until such time as payment in full has been made.
14. If objective elements (such as, without limitation, protested bills of exchange, cancellation of credit, attachment or seizure or outstanding debts) indicate that the Customer is facing liquidity problems, the Seller has the right to make the fulfilment of the Seller’s obligations subject to the receipt of sufficient guarantees.
15. The Seller represents that the goods and materials will conform to the specifications, if any, expressly agreed to in writing by the Seller.
The Seller hereby expressly disclaims all other representations and warranties, whether express or implied, including any warranties of merchantability or fitness for a particular purpose.
16. At the time of delivery the Customer shall conduct a visual inspection of the goods, materials and packaging delivered by the Seller. Any shortages or apparent damages shall be detailed on the consignment note.
The Customer shall further without delay and, in order to avoid forfeiture, at the latest within three (3) days of delivery send a copy of such consignment note and provide at the same time detailed information in writing concerning shortages and/or apparent damages to the Seller including evidence of such defects.
The Customer shall immediately upon request by the Seller make available all defective products (and the original labelled packaging) or deficient packaging for inspection. Further, on the Seller’s request, the Customer shall return all such products (and the original labelled packaging) or deficient packaging to the Seller or the Seller’s appointed service partner.
The Seller shall not be liable for any visible lack of conformity if the Customer has failed to comply in any manner with this provision or with the the Seller return procedures and/or guidelines known by the Customer.
17.1 The burden of proof regarding the latent defects shall be on the Customer. If there is any latent defect in the goods and materials delivered by the Seller, the Customer shall be required to inform the Seller in writing (by registered mail) within 8 days following the date on which the Customer becomes aware of such defect. Such written communication must set out in reasonable detail the nature of the latent defect and include evidence of such defect.
The Customer shall make available all defective products for inspection upon request by the Seller. Further, on the Seller’s request the Customer shall return all such products to the Seller or the Seller’s appointed service partner.
the Seller shall not be liable for any latent defect if the Customer has failed to comply in any manner with this provision or with the the Seller return procedures and/or guidelines known by the Customer.
18. In case of a visual lack of conformity or latent defect that has been notified to the Seller in accordance with points 16 and 17 above, the Customer is only entitled to obtain the reparation or replacement of the defective goods, at the Seller’s sole discretion, in either case free of charge.
Apart from the costs strictly related to conducting such repair or replacement, the Seller shall not be liable for any other costs, transport costs, installation costs, expenditures, (indirect) damages or any other financial obligation that is in any manner related to the defect in the goods and materials or any possible consequence thereof. Any other liability that is imposed by applicable mandatory law shall, to the extent permitted by such applicable mandatory law, be limited to (i) the invoice value of the order of the Customer, at least for that part of the order to which the liability relates, or (ii) if covered by the Seller’s liability insurance, the amount covered by that liability insurance.
Only if the Seller has not completed the remedy within a reasonable time, may the Customer require an appropriate reduction of the price. The Customer is never entitled to have the contract terminated or rescinded.
The limitation of liability above shall also apply with respect to possible claims raised by third parties with regard to the delivered goods and the Customer shall hold the Seller harmless for any claims of third parties exceeding this limited liability.
The Customer shall inform the Seller of all complaints received concerning the products. If the Seller so requires, the Customer undertakes to carefully follow up regarding all complaints with the purpose of avoiding damage and questioning of the goodwill pertaining to the Seller and the products.
19. Without the Seller’s written and specific consent, the amounts owed by the Customer to the Seller cannot in any way be offset against any amount the Customer may claim the Seller owes it. Neither can the Customer invoke such claims to justify the suspension or postponement of its payment obligations towards the Seller.
20. In case of “force majeure”, even when this does not lead to a permanent and/or complete impossibility to carry out the contract, the Seller has the right, by law, to postpone or to annul the Seller’s commitments unilaterally, after giving prior notice thereof to the Customer. Such postponement or annulment shall not entitle the Customer to any indemnification.
Conventional “force majeure” include, without limitation: war, a strike or lock-out, extreme shortage of raw materials or goods, cyber attack, weather conditions, fire, natural and/or other disasters, an epidemic or pandemic (including any resulting governmental action), governmental decisions which influence the execution of agreements. This provision shall apply irrespective of whether these instances of “force majeure” apply to the Seller or to its suppliers.
21. If any clause of the present terms and conditions is found to be invalid for any reason, the remainder of these terms and conditions shall not be affected and shall remain in full force and effect. In such a case the Seller and the Customer will negotiate in good faith and replace the invalid or unenforceable clause by a legally valid and enforceable clause that is as close as possible to the purpose and purport of the original clause.
22. For as far as the Confidential Information includes any information relating to an identified or identifiable natural person (“Personal Data”) each party will exercise its reasonable efforts to ensure that the processing of the Personal Data will be carried out in accordance with the relevant provisions of the applicable data protection laws.
23. All designs, studies, drawings, working methods, and in general all media in which our intellectual service performances appear or are contained, remain our property at all times. Under no circumstances may these be used, communicated or copied, even partially, without written permission from the seller.
24. Unless the Seller opts to bring a claim against the Customer before the courts of the judicial district in which the Customer has its registered office (Court in Kortrijk, Belgium), any dispute between the Seller and the Customer shall be within the exclusive jurisdiction of the Courts of the Seller’s registered office. This jurisdiction clause applies to all types of proceedings, including summary proceedings or proceedings to secure interim or conservatory measures.
The present terms and conditions are governed by the law of the country where the Seller has its registered office. The applicability of the Vienna Convention on the International Sale of Goods is hereby explicitly excluded. All other matters that have not been expressly specified shall be governed by the applicable law.