1. Scope of application and general provisions
1.1. These general terms and conditions apply to all sales of A-tec BV (“A-tec”), unless otherwise agreed in writing.
1.2. These general terms and conditions take precedence over any terms and conditions of the co-contractor that may be present, even if A-tec has not expressly rejected the application of such terms and conditions.
1.3. If one of the clauses of these general terms and conditions should prove to be invalid, this shall have absolutely no impact on the legal validity of the other clauses.
1.4. The co-contractor declares, prior to concluding the contract, that he has read these general terms and conditions and that he accepts them.
1.5. If A-tec does not invoke a particular provision of these general terms and conditions, even though the conditions for doing so are fulfilled, this does not entail any waiver of the rights that A-tec can have enforced.
2. Conclusion of the contract
2.1. The offers issued by A-tec are not binding and are valid for a maximum of 2 months, unless stated otherwise.
2.2. A contract only comes into existence after the order that was placed by the co-contractor is expressly confirmed by A-tec through the sending of an order confirmation.
2.3. Each contract is deemed to have been concluded, after acceptance, at the place where the registered office of A-tec is established.
2.4. If the order is withdrawn by the co-contractor after it had already been confirmed by A-tec or if, during its performance, the contract is unilaterally cancelled by the co-contractor, the co-contractor shall in any case owe liquidated damages of 10% of the agreed total price with a minimum of 500.00 euros, without prejudice to the right of A-tec to demand performance of the contract and/or claim damages for the harm it actually suffered.
2.5. All prices and price lists are VAT excluded. All other charges and costs shall, unless expressly stipulated otherwise, be borne by the co-contractor.
3. Delivery – Transport – Assembly
3.1. The delivery date and the FAT-date (together the “delivery periods”) as specified in the offer and/or order confirmation are purely indicative and under no circumstances binding. The delivery periods only start after the moment that the order confirmation is sent and - as applicable - after receipt of the agreed advance.
3.2. Under no circumstances do the delivery periods constitute an essential part of the concluded contract. Expiry of the proposed delivery period does not under any circumstances, unless the delay is attributable to bad faith or gross negligence on the part of A-tec, give rise to any right to refuse or cancel the order (dissolution of the contract), nor to damages. If the planned delivery is postponed at the request of the co-contractor, the goods shall be temporarily stored for the account and at the risk of the co-contractor. The storage costs will be charged to the co-contractor on basis of post calculation.
3.3. Delivery will occur Ex Works (Hoogstraten, Kleistraat 9) (Incoterms® 2020), unless expressly provided otherwise. The risks of loss or destruction of the goods sold by A-tec transfer to the co-contractor at the time of the aforementioned delivery, even if the transfer of ownership occurs at a later time.
3.4. The order confirmation shall contain the agreements regarding the transport of the goods. Unless expressly provided otherwise in the order confirmation, the transport and the storage of the goods at the co-contractor’s premises until and on the FAT-date will take place for the account and at the risk of the co-contractor. The latter shall also insure the goods for the full invoice amount.
3.5. A-tec assembles the goods at the co-contractor´s premises. The co-contractor shall thus assure that the area in which the goods must be assembled meets all statutory and regulatory requirements, including those on work safety.
3.6. All waiting hours, which are not caused by A-tec, will be charged to the co-contractor together with all (in)direct related costs (such as, but not limited to travel hours/travel and subsistence expenses and day/night allowances).
4. Transfer of ownership
4.1. Ownership of the goods sold by A-tec shall only be transferred to the co-contractor when the full purchase price and all other amounts (costs, interests and any damages) deriving from the contract and these general terms and conditions have been paid.
4.2. If the co-contractor remains in default of payment, A-tec is entitled - both vis-à-vis the co-contractor and vis-à-vis any other third party - to have its right of ownership enforced and to demand return of the goods, without first having to appear in court for this purpose.
5. Price and payment
5.1. Unless otherwise agreed in writing, the prices are Ex Works (Hoogstraten, Kleistraat 9) (Incoterms® 2020).
5.2. All taxes, fees and/or levies, of any kind whatsoever, that relate to the delivered goods or their transport, including new taxes, fees and levies that may be introduced after the conclusion of the contract, shall be borne in full by the co-contractor.
5.3. The invoices are payable in cash at the address of the registered office of A-tec.
5.4. The invoices must be paid at the latest on the due date that is stated on the invoice. By "payment" is understood in the case of a payment by, for example, bank transfer or via a cheque or a bill of exchange, the irrevocable crediting of the bank account of A-tec. Any costs associated with cheques or bills of exchange shall be borne by the co-contractor.
5.5. In the event of a delay in payment, interest shall be owed ipso jure and without notice of default, counting from the due date, equal to the legal interest rate for business transactions in accordance with article 5 of the Act of 2 August 2002 on combating late payment in commercial transactions (Belgian Official Journal of 7 August 2002). In addition, contractual damages shall be owed, ipso jure and without notice of default, equal to 10% of the invoice amount, with a minimum of 500.00 euros.
5.6. The non-payment of an invoice on the due date shall entail that, without prior formal notice of default, (i) all (non-)due invoices of the same co-contractor or the companies associated with him within the meaning of the Belgian Companies Code, shall immediately become fully exigible and (ii) all still-unperformed deliveries shall be suspended until such time as all invoices, including the non-due ones, have been paid.
5.7. The co-contractor expressly waives his right to postpone, suspend or offset the payment of all amounts that he is owed under the contract and/or the general terms and conditions due to alleged breach of contract on the part of A-tec, including - but not exclusively - non-conformity and/or latent defects. The co-contractor expressly acknowledges application of the “first pay, then talk” rule.
6. Conformity and acceptance – warranty
6.1. The specifications that the goods must satisfy shall be agreed to at the latest in the contract. A-tec shall proceed here on the basis of the information that is furnished by the co-contractor.
6.2. Commissioning of the goods by the co-contractor signifies acceptance of the goods. This acceptance must be included in a written document, signed by A-tec and the co-contractor. All complaints regarding shortages in number or visible defects must be communicated to A-tec by the co-contractor immediately, and at the latest within 24 hours after acceptance of the goods by registered letter, with at the same time a copy by e-mail.
6.3. The co-contractor undertakes to test the delivered goods (or to have them tested) within eight days after receipt to verify whether these goods are in conformity with the requirements established in the contract. Complaints about this must be communicated to A-tec by registered letter within the same period, with at the same time a copy by e-mail.
6.4. A-tec guarantees a proper technical functioning of the installation and of all parts that are delivered and assembled by it during the period included in the order confirmation (“Warranty Period”). During this Warranty Period, A-tec assumes the costs of repair (working hours) and/or replacement of (a part of) the purchased goods. In case of replacement of a part, a warranty will be given that is equal to the remaining duration of the Warranty Period. Any kilometer allowance/travel expense compensation that should be owed to A-tec, and parts that were not installed or replaced by A-tec, do not fall under this warranty.
7.1. If A-tec is liable for loss or damage - other than death or personal injury - that derives from or is connected with the contract, it shall have the choice either to pay damages or to replace the defective goods.
7.2. A-tec is not liable for:
• errors or defects of parts that were not delivered and/or assembled by A-tec;
• errors or defects arising in whole or part from the normal wear and tear of whatever part or from the damage or an accident caused by the co-contractor or a third party;
• any divergent or unusual use of the goods or any use whatsoever that is not in accordance with the indicated purpose of the goods, common practice or the instructions and recommendations of A-tec.
7.3. In any event – and in so far as the contract does not provide for more limited liability –
a. the liability of A-tec in all circumstances is limited to the price of the goods as specified in the contract, i.e. without assembly, and
b. A-tec can never be held liable for consequential damages, including – but not limited hereto – loss of use, loss of products, loss of revenue or profits and loss of goodwill.
8. Non-performance by the co-contractor
8.1. Without prejudice to other rights and available legal remedies, A-tec is entitled to terminate the contract without advance notice or formal notice of default and without judicial review a priori with regard to the seriousness of the reasons for termination, or to immediately suspend any or all further deliveries if:
a. any sum as a result of any contract between the parties is owed and payable and remains unpaid after the indicated payment period; or
b. the co-contractor remains in default to receive any goods whatsoever in accordance with any contract between the parties; or
c. the co-contractor becomes insolvent, finds itself in a state of liquidation, a provisional administrator has been appointed for the co-contractor, the co-contractor suspends the payment of his debts in whole or part, enters into a settlement with creditors, is the object of a declaration of bankruptcy or any other similar procedure, or in the event that a similar procedure takes place in accordance with the law that applies to the co-contractor.
8.2. In any of the cases mentioned in article 8.1, A-tec has the right to demand advance payment and to demand the security that it deems necessary in order to resume the delivery under this or any other contract with the co-contractor.
9. Force majeure / Unforeseeability
A-tec shall not be liable for any delay whatsoever in the performance of its obligations or for the non-performance thereof, if this delay in performance or non-performance is wholly or partially the result of:
• shortages or interruptions of the supply of materials or of natural resources;
• shortage of means of transport;
• non-performance on the part of A-tec’s supplier of its obligations, assumed vis-à-vis A-tec as a result of A-tec’s contract with the co-contractor, if A-tec proves that it does not itself have the goods to be supplied in stock;
• floods, fire, act of God, war, rebellion, civil revolution, strikes, lock-outs, industrial unrest, stormy weather, actions of civil or military governments, pandemics, etc.;
• circumstances beyond the reasonable control of A-tec.
10. Applicable law and competent court
10.1. The contract, including these general terms and conditions, is governed by Belgian law.
10.2. The enterprise court of Antwerp, department of Turnhout, has exclusive jurisdiction to settle all disputes relating to the contract, including these general terms and conditions. Nevertheless, A-tec reserves the right to bring disputes before any other competent court.