Terms and conditions

GENERAL TERMS AND CONDITIONS OF SALE

1. GENERAL

These general terms and conditions may be subject to further changes as may be described in writing by the parties. In the event of any conflict, between the special conditions and these general terms and conditions, the special conditions shall prevail.  The general conditions of sale shall prevail over the purchase conditions of the buyer.

2. ESTABLISHMENT OF THE CONTRACT

2.1. The contract is only concluded, after that the seller has received a (verbal or written) order and after the written acceptance of the order.
2.2. When the seller set a deadline for his acceptance, the contract will start at the confirmation of the acceptance by the buyer before the expiry date of this period.  The contract will however not be established when the seller received this confirmation more than five days too late.
2.3. Any amendment is only accepted after a written confirmation by the seller, or his legal representatives or vicarious agents.

3. DRAWINGS AND DESCRIPTIONS

The weights, dimensions, capacities and other details mentioned in any catalogue, prospectus, circular, advertisement, picture or price list have the nature of an approximate indication. These drawings and prescriptions are compulsory, only in case the contract refers explicitly to these details.

4. TRANSPORT AND PACKAGING

Unless otherwise stipulated, prices are quoted in bulk, ex works and excluding related costs. Packaging will be charged separately.

5. TRANSFER OF RISK

5.1 The goods are sold and finally approved in the factories of the seller, even if they have to be sent freight paid, following the Incoterms (version 2000) EX WORKS (EXW).
5.2 The goods will travel at the buyer’s own risk.

6. RETENTION OF TITLE

6.1 Without prejudice to the provisions of Section 5, ownership of the goods sold will only be transferred to the buyer once payment in full has been received.
6.2 The buyer is not allowed to sell or hand over the goods to a third party, as long as the goods remain the property of the seller. Failing to comply with this prohibition, the buyer is due to pay a fixed fee of 25% of the selling price (beyond the selling price and any interest for delay).

7. DELIVERY

7.1 Unless otherwise stipulated, delivery time starts to run from the date of the establishment of the contract, as defined in Section 2.
7.2 Unless otherwise stipulated, delivery dates specified in the contract are only informative and are not binding for the seller and cannot give cause for compensation. Delays do not justify the dissolution of the contract by the buyer.
7.3 If the seller makes the goods available to the buyer, and the buyer does not pick them up, the buyer is not allowed to postpone the due date on the invoice that he will receive for his delivery. The seller provides in storing the goods at the buyer’s expense and risk.

8. TERMS OF PAYMENT

8.1. Payments will be made in euro, net and without any deduction. The goods have to be paid at the seller’s head office.
8.2. Prices are based on actual prices of raw materials, salaries and social security contributions at the time of the establishment of the contract.
Unless otherwise stipulated, the seller can adjust prices, if he can prove that at least one of the above mentioned criteria has changed between the establishment of the contract and the actual time.
8.3. Unless otherwise stipulated, payment is to be made within 30 days from the day following (the late payment of commercial debts (interest) act 02 august ’02 applies to this invoice).
- the receipt of the invoice by the debtor, or
- the receipt of the goods, if the date of the receipt of the invoice is uncertain, or if the debtor receives the invoice before the goods.
8.4. From the time the payment is claimable, the buyer shall be legally (and without warning) required to pay interest at the rate of 10% per year of the overdue amount.
Every invoice which is not paid as agreed will be automatically increased without warning and rightfully with 10% with a minimum of € 250 and a maximum of € 2500, on account of fixed and undiminished penalty cause.  This interest does not allow to postpone payment.
8.5. All payments, and (future) costs of whatever nature, shall be at the buyer’s expense.
8.6. Unless written and prior agreement of the seller, the buyer cannot require any compensation for assumed rights and claims. On the other hand, the seller is allowed to invoke compensation.

9. FINANCIAL GUARANTEES

The seller may not be satisfied, for whatever reason, that the buyer is sufficiently creditworthy. Any deterioration of the buyer credit may justify the request of guarantees which the seller assumes necessary, even after partial shipment. The seller will be able to cancel the contract, without prejudice to other liabilities.

10. RESOLUTIVE CONDITION

If the buyer is unable to pay for the delivered goods, or if he does not meet his obligations, the contract shall automatically be terminated, legally and without notice, for all parts, or for the part that still has to be done, by a simple notification sent by registered letter from the seller to the buyer, at least eight days after the demand to fulfil his obligations.
In addition to the payment of the goods that had already been delivered, the buyer shall be required to pay a compensation of 30% of the purchase price, notwithstanding the right of the seller to prove that his costs are higher.

11. WARRANTY

11.1 As for errors regarding to quantity or weight of the delivered goods, and as for all other visible damages, the seller will no longer be responsible, once the goods have been accepted, in accordance with Section 5.1. All complaints regarding to visible damages must be formulated within 5 days by registered letter by the purchaser/installer, delivery has to be accepted with reservations on the delivery note for as far as the defect could be determined at the time of delivery.
11.2 Within the limits specified by the next stipulations, the seller shall be required to repair all latent defects in accordance with the provisions of the Civil Code and described in 11.4 and which relieves the seller of any consequential damage. Damage other than consequential damage will have to be demonstrated by an independent expert . 
11.3 This contract is only applicable on damages discovered within two months after putting into service.
This putting into service is supposed to take place (at last) thirty days after receipt of the goods, if the delivery takes place in Belgium.
If the goods are delivered abroad, this term will be 45 days after receipt of the goods.
11.4 Our responsibility for defects due to faulty manufacture is limited to the repair or replacement of defective parts and to the delivery of new parts in the shortest possible time.  Defective parts have to be sent to Avasco Solar N.V.

12 ASSEMBLY

12.1 The assembly is not part of the contract between buyer and seller.
12.2 The goods must be constructed according the instruction manual. Avasco Solar cannot be held liable for incorrect installation, both in concept and in terms of the performance, that is the responsibility of the buyer/installer.
12.3. The buyer/installer must inform Avasco Solar about any fault on the delivered goods, by registered letter, within 5 days after the installation; this communication will contain a detailed report of all 
so-called faults so that Avasco Solar can intervene immediately in accordance with the warranties in accordance with section 11. If Avasco Solar does not receive a report in that sense, it assumes that the byer/installer received the goods without any default.

13. REASONS FOR EXEMPTION

Any delay due to force majeure entitles the seller to either dissolve the contract, or to postpone the delivery times for a period that corresponds with the duration of the force majeure, and this without any compensation. As a case of force majeure shall be understood any event, causing important changes to the general operating conditions of the seller’s company, including, without limitation: war, hostilities, revolution, strikes, lockout, political and social disturbances, fire cancellation or absence of transport services. The seller will, if he deems it to be necessary, inform the buyer at the proper time about the occurrence of the above events.

14. COMPETENCE

14.1 The contract is subject to Belgian law, unless agreed otherwise by parties in a prior written agreement.
14.2 The stipulations of the treaty on “the international sale of moveable property” are not applicable to this agreement.

15. JURISDICTION

Any dispute of whatsoever kind shall fall to the jurisdiction of the Court of Ypres (Ieper), unless stipulated otherwise in the contract.

PURCHASE CONDITIONS

Art.1. GENERAL

The customer is the purchaser and the seller is any natural or legal person who has assumed the responsibility for the execution of a purchase order.
Subject to any other written provisions which have been accepted by the buyer, all present and future contracts will be governed by these general conditions, with the explicit exclusion of any conditions to the contrary of the seller. The acceptance of a delivery does not signify acceptance of the conditions of sale of the supplier. In the event of any contradiction, the order of precedence is as follows: the special conditions of the order, the conditions of purchase, the request for proposal, and the offer.

Art.2. PURCHASE ORDERS

Oral or telephone orders must always be confirmed by means of a signed order.
In the absence of a signed order, any oral or telephone order will be deemed non-existing.
The seller will need to confirm acceptance of the purchase order within 5 business days. Any purchase order that is not accepted within said term may be cancelled by the purchaser, without any form of compensation.
In the order confirmation, the seller will need to mention any and all remarks with regard to the purchase order concerned. On the basis of these remarks, the purchaser will still have to cancel the order in writing within 5 business days, without any compensation being due (the aforesaid term can be extended by the closing periods of the company).
Any modification to these present conditions of purchase shall only be valid with the written and explicit approval of the purchaser.

Art. 3. PRICE

Subject to any other written conditions, all duties and costs (transport, packaging, etc.) shall be borne by the seller. Any packaging will be deemed to have been acquired by the purchaser, without the seller being entitled to reclaim its value.

Art.4. DELIVERY / TRANSFER OF RISK

Regardless of the origin of the articles or of the conditions of sale, the deliveries shall take place in the factories or warehouses of the purchaser, or on another location indicated by the latter. No deliveries will be accepted outside the hours of delivery as indicated by the purchaser, nor on Saturdays, Sundays or Holidays.
The transfer of risk takes places as soon as the seller has fulfilled his obligation to deliver. The signature of a person in charge of the purchaser constitutes the sole proof of delivery, but does however not signify approval of the materials delivered. Within short notice, the purchaser will need to inform the seller of any visible defects, while the seller will continue to be liable for any hidden defects, pursuant to the provisions of the Civil Code.
The ownership is transferred upon delivery of the materials or goods supplied. Any clause postponing the transfer of ownership or containing any reservations with regard to this transfer of ownership is not valid vis-à-vis the purchaser. The unilateral insertion of a reservation of ownership clause in the general terms and conditions or in any other document of the supplier has no legal effect with regard to the purchaser and will only be legally valid vis-à-vis the purchaser following the written consent of the latter.

Art.5. SHIPMENTS

Any shipment must be preceded by a notice of shipment containing the following information:
a) the purchase order reference
b) a complete description of the articles
c) a numbered packing list of the parcels
d) gross and net weight of each parcel
A copy of this notice of shipment must be joined to the shipped goods.
Each parcel must mention the purchase order number, as well as the gross weight.
All packaging costs will be borne by the supplier. The packaging must be adapted to the transport conditions and must comply with the current legal requirements. The type of packaging must avoid any kind of damage during transport or intermediary handling.
The purchaser reserves the right to return any goods not accompanied by these documents at the charge and risk of the seller and to charge to the seller any expenses and charges incurred (storage, transport, unpacking, repacking, loss of time, etc.) caused by the lack of information at the time of arrival of the goods.
Any complete or partial shipment must be carried out according to the guidelines of the purchase order. Any additional costs arising from the failure to observe these guidelines will be invoiced to the seller.

Art.6. TERM OF DELIVERY

Only the delivery term as indicated on the purchase order shall apply. Any such delivery terms shall only be deemed met if the delivery takes place at the location designated by the purchaser. Any advancing or delay must be submitted for approval to the purchaser, whereby only a written approval by the purchaser shall be valid.
The purchaser has the right to cancel a purchase order if said order is not delivered within the term set by the purchaser, by means of a written notification and without notice of default or any other formalities, and without any entitlement on the part of the seller to claim any compensation. Any exceeding of the delivery term constitutes an adequate condition for the purchaser to proceed to an extrajudicial cancellation of the purchase order.
In such event, the purchaser will place his purchase order with another supplier and will inform the seller of this by means of a simple notification. This new order is at the account and risk of the seller, which also applies to the articles which are the subject of the purchase order, and whereby the seller will also need to indemnify the purchaser for all direct and indirect damage resulting from this cancellation.

Art.7. ACCEPTANCE AND INSPECTION

The acceptance of the delivered goods shall take place after inspection in the warehouses or offices of the purchaser or at the designated location of delivery.
The purchaser is entitled to reject any delivery that is not conform to the purchase order. Non-approval of the goods must be notified to the seller within 30 days.
This more particularly concerns the visible defects that are identified either at the time of delivery or after inspection in the warehouses. For the hidden defects, reference is made to the provisions of the Civil Code. In the event of a non-conform delivery, the purchaser reserves the right to replace the goods concerned at the expense and at the risk of the seller.
The seller will also need to compensate any damage incurred as a result of such incorrect delivery.
Any administrative costs of the buyer may be invoiced to the seller.

Art. 8. CANCELLATION

Without prejudice to the abovementioned purchase order cancellation, the purchaser shall, completely or in part , cancel the purchase order in case the purchaser is seeking an amicable settlement with his creditors, either within the context of the application of the law on the continuity of enterprises or in the event of a declaration of bankruptcy of the company.
This cancellation will be done by means of a simple registered letter, without any other form of notice of default or any other formalities.

Art. 9. PAYMENT

Following delivery, the seller will create an invoice (in three copies) for each shipment and for each order. These invoices must be sent to the supplier accounting department of the purchaser. Save otherwise stated in the order, the purchaser shall pay by cheque, by bank draft or by bank transfer within 60 days from the end of the month of invoice date. The purchaser is entitled to set off payments against any outstanding amounts due by the seller as a result of invoiced costs. The purchaser shall not be entitled to claim any compensation in the event of late payment by the purchaser due to any of the circumstances listed in Art. 15.

Art. 10. LIABILITY

De supplier shall compensate any and all damage caused by him or by his servants as a result of, or during, the execution of the purchase order. The supplier shall indemnify the purchaser against any and all claims from third parties.

Art. 11. GUARANTEE

All goods delivered by the supplier are covered by the warranty against design faults and construction defects and/or any other shortcoming. Any partial or complete delivery showing defects shall be replaced without any extra cost for the purchaser. All costs resulting from the delivery of defective goods shall be invoiced to the seller.
In the event of any damage, the seller shall indemnify the purchaser. In case of a serious defect, the purchaser may, at his own option, either request a price adjustment or consider the agreement to be dissolved by force of law, without prior notice of default being required.

Art. 12. CONFIDENTIALITY

All models, work materials, plans and other technical documents supplied by the purchaser to the seller shall remain the sole property of the purchaser and were only made available to the seller under the condition of confidentiality.
The seller upholds not to transmit this information to third parties, with the exception of sub-contractors who have been approved of in writing by the purchaser. The seller shall only use this information for the purpose of the execution and realization of the goods ordered by the purchaser.
Except for cases where the plans or models have been supplied by the purchaser, the seller shall be responsible for the compliance of the goods with any laws regarding licenses, patents, brands, authors or industrial property.
At the request of the purchaser, the supplier shall immediately return any written information and any documents or plans that were created, including any copies thereof, and under any form whatsoever.
The supplier shall indemnify the purchaser against any and all damage resulting from proven or alleged violations by the supplied goods with regard to industrial or intellectual property rights.

Art. 13. PUBLICITY

Save with the express written consent of the purchaser, the supplier may not use the brand name or the name of the purchaser for publicity purposes of whatever nature, nor for any other purpose.

Art. 14. NULLITY

In the event of nullity of a provision of these terms and conditions, this shall not result in the nullity of the other provisions. In any such case, the parties will consult with each other in order to have the void provision replaced by a new provision which most closely adheres to the original meaning of the provision in question.

Art. 15. DISCHARGING CIRCUMSTANCES

The following shall be considered a discharging circumstance: all circumstances arising beyond the control of either party to the agreement, and which may impede the execution thereof: labour disputes, fires, mobilization, embargoes and any other unforeseen events that may, directly or indirectly, result in a delay or non-execution of the agreement. The party invoking any of these circumstances must immediately notify the other party of this.
The occurrence of any of these events shall discharge the purchaser and the seller from their liability, and any costs already incurred by these parties shall be borne by the parties themselves.

Art. 16. JURISDICTION

All disputes shall be settled by the courts of Ieper (Ypres).

Art. 17. APPLICABLE LAW

All present and future orders shall exclusively be governed by Belgian law, excluding the Vienna Sales Convention (CISG).