All deliveries are exclusively effected under the present terms and conditions, unless other terms and conditions have been laid down in writing. All commercial transactions between nv Callens Willy, of which the registered office is situated in 8790 Waregem, Industrielaan 21, registered in the Crossroads Bank of Enterprises under no. 0419.765.520 (hereinafter called Callens) and the companies affiliated to it on the one hand, and the customer on the other hand, are governed by the present general terms and conditions. By placing an order the customer recognizes having taken cognizance of these general terms and conditions and accepting these. The present general terms and conditions always take precedence over the general terms and conditions, if any, of the customer. By placing an order with Callens the customer renounces the application of his general terms and conditions. The judicial nullity, if the occasion arises, of an individual stipulation of the present general terms and conditions does not in any event prejudice the legal validity of the remaining stipulations.
The price quotations drawn up by Callens are, unless stipulated otherwise, free of any engagement. Callens is only bound by the written order confirmation it has signed. The agreement is only definitive upon written confirmation by Callens. Assignments taken by sales agents, appointees or employees are only valid upon written confirmation by a competent person who has the powers to bind Callens in this respect.
All assignments are executed on an hourly basis, unless explicitly stipulated otherwise in writing.
All cancellations of an order and/or assignment shall be effected by registered letter. It is only valid provided it is accepted in writing by Callens. In case the customer should cancel his order and/or assignment upon order confirmation by Callens, but before the execution whatsoever of the order and/or assignment, he shall pay a cancellation compensation within 8 days, which is fixed at 20 % of the overall amount of the order and/or assignment, provided that Callens can prove the real damage by all legal means if it proves to be more.
In case of cancellation of the order and/or assignment after the execution of the agreement has started, the customer shall pay a severance compensation within 8 days, which is fixed at 40% of the overall amount of the order and/or assignment, provided that we can prove the real damage by all legal means if it proves to be more.
Except when explicitly mentioned in the order confirmation, the following will never be comprised in the agreement:
- civil undertakings, demolition works, repairs, excavation works, chimney throughputs, masonry, painting works, insulation and electricity works;
- inspection costs, if any;
- the rental cost of hoisting gear and elevating trucks, if necessary;
- additional costs and modifications resulting from special local circumstances, unfinished works of other contractors, or works that fall outside the scope of the works of Callens;
- putting available water, electricity, compressed air;
- accommodation and food for our staff during the works;
- all works and supplies that are not explicitly mentioned;
Delivery and execution periods are given in good faith, but only indicative and therefore not binding, except when agreed upon to the contrary in writing between the parties.
Subject to contrary agreement between the parties the delivery or execution period only starts at the payment of the advance payment, if requested, and after that the customer has given all necessary details for the execution to Callens.
Delay in the delivery or the execution can never give rise to penalties for delay, compensation or dissolution of the agreement at the charge of Callens.
Modifications to the assignment or order asked by the customer automatically result in the expiration of the initially suggested delivery periods.
Parties accept that the contractual obligations resulting from the agreement between the parties can be realized under cover of an electronic signature.
By electronic signature it is understood the signature of the customer placed by means of a special pen on the screen of a computer of Callens or of the customer himself. Callens and the customer agree that the electronic signature is equivalent to the handwritten signature and meets the requirements of article 1322, paragraph 2 Belgian Civil Code. Furthermore, parties agree that the electronic signature has the same legal effects as the law attributes to it, both with regard to Callens and third parties.
The goods are considered received and accepted in workshops or warehouses of Callens.
All goods are delivered ex works in the sense of the Incoterms 2000.
In the event of sale, the goods are therefore received and accepted in the warehouses of Callens, before their departure.
All ordered goods and materials, both in the event of contract work and purchase, are at all times transported at the risks and perils of the customer, even when it is agreed that Callens is responsible for the transport. The custody of goods awaiting delivery or collection is at the risk of the customer. For orders with a value of less than 100.00 EUR a supplementary delivery cost of 25.00 EUR will be charged.
The customer is responsible for the good preservation of the materials, tools and appliances of Callens from the day they enter the construction site.
To that end, he will put a closed-off space at the disposal of Callens. As a consequence, the customer is also responsible with regard to Callens when these materials are alienated by theft.
Callens ensures the damage caused by the materials, tools and appliances that are in custody of the customer because of fire, smoke, explosion and water within the limits and stipulations laid down in article 10 of the present general terms and conditions.
The prices mentioned in price quotations and/or order confirmations of Callens are valid on the date of the price quotation and/or the order confirmation and this as long as the execution period provided for in the agreement is running. Prices are nett ex-factory or ex-warehouse. All other accessories, such as packing, shipping, freight, taxes are at the charge of the customer.
Prices are coupled to the Agoria price adjustment formula.
They are adjusted by right, to the part that still has to be invoiced, when the contractually provided execution periods are exceeded by any cause whatsoever beyond the control of Callens.
The basis is the contractually provided date of payment.
Any suspensory condition on behalf of the customer is considered as non-witten and cannot be invoked against Callens.
Unless otherwise agreed upon in writing, Callens retains all copyrights and all rights of industrial property on the offers, drafts, images, drawings, plans, (sample) models, software, etc. they propose.
The rights on this information remain the property of Callens, irrespective of the fact whether or not costs have been charged to the customer for the creation thereof. This information cannot be copied, used or shown to third parties without prior, explicit and written consent of Callens. For each infringement on this stipulation, the customer owes Callens a fixed damage compensation of 5,000.00 EUR, the sum in excess to be proven by Callens.
The customer shall return the information given to him as enumerated in this article at first request within the term set by Callens. In case of infringement of this stipulation, the customer owes Callens a damage compensation of 500.00 EUR per day of delay.
On delivery of the goods and installations, the customer shall immediately carry out a meticulous inspection. The receipt of the goods and/or installations covers visible defects as well as the conformity of the supplied items in accordance with the order both in the field of quality and quantity. The works are considered as provisionally accepted when:
- The customer has approved the works;
- The works have been taken into service by the customer. When the customer takes a part of the works into service, that part will be considered as provisionally accepted;
- Callens has announced in writing to the customer that the works are completed and the customer has not communicated in writing whether or not the works are approved within 14 days after the announcement;
- The customer does not approve the works on the basis of small shortcomings or missing parts that can be repaired or delivered within 30 days and that do not hinder the putting into use of the works.
When the customer does not approve the works, he is obliged to do so in writing and with full reasons. In case the customer should not approve the works, he will give Callens the opportunity to deliver the works again. The stipulations of this article are again applicable on this delivery.
The customer safeguards Callens against claims of third parties for damages to parts of the works that are not yet provisionally accepted caused by the use of parts of the works that are already accepted.
No complaint will be accepted in case it should relate to second-hand goods and/or installations or goods and/or installations that were sold at special reduced prices. In case of
well-founded complaints, Callens reserves the free choice either to replace the goods or repair the installations on the one hand or to reimburse the value thereof on the other hand.
The liability on behalf of Callens will, pursuant to the present clause, therefore always and irrevocably be limited to the value of the goods it delivered or the installations it installed,
this on the basis of the prices it charged.
The liability of Callens is limited to the compensation for direct and personal damage, and this only to the amount of maximally 5,000,000.00 EUR. The liability of Callens pursuant to indirect or consequential damage is also limited to the invoice amount and will – both for direct and indirect damage mixed – maximally amount to 5,000,000.00 EUR. By indirect or consequential damage, it is understood – but not limited to - : financial and commercial loss, production loss, loss of profit, increase of general costs, disturbance of the planning, loss of clientele, affection of reputation, … In addition, Callens cannot be held responsible for damage that is caused in all or in part by appliances or tools supplied, installed or put at the disposal by the customer or third parties, as well as damage that is in all or in part caused by any other element present in the company of the customer or brought in the company of the customer after the conclusion of the agreement, damage the customer would suffer pursuant to demands or claims of third parties and damage to other material than the material that was supplied by Callens for the execution of the agreement in question.
In the event of non-insured damage, the liability is limited to the amount of the invoice and can maximally amount to 5,000,000.00 EUR. In the event of defective goods, the liability of Callens is in any case limited to the supply of substitution goods or the trade value of the delivered goods, to the exclusion of any other liability. Consequently, Callens can in no event be held liable for the free repair of defective goods. Callens is exempt of liability when the non-execution is due to force majeure as mentioned in article 17. The guarantee on the goods delivered by Callens is limited to the legal guarantee the seller must imperatively give to the buyer and, if the occasion arises, by the guarantee that is given by the manufacturer of the delivered goods. The guarantee only covers a lack of conformity existing at the moment of delivery and subject to the fact that the good is used and installed in accordance with the operating instructions and the installation guidelines.
All goods remain the property of Callens until the customer has met all his obligations with regard to Callens, including the obligations resulting from other transactions. The customer recognizes that this clause of retention of title has been communicated to him and is accepted by him before delivery of the goods. Given the retention of title, the seller is forbidden to alienate the sold goods before payment in full and this under penalty of an additional fixed compensation for damage, amounting to half the price of the delivered goods. In case the buyer should, contrary to this retention of title, proceed to alienation to a third party, all debt-claims resulting from this sale will, in
application of art. 1690 CC, by right and without any notice of default pass on to the seller as titular of the retention of title, this in guarantee of the payment in full by the buyer. Not withstanding this explicit retention of title all risks regarding the goods, installations and works are transferred to the customer as from the delivery, as laid down in art. 5 of the present general terms and conditions. In case it should be agreed that the customer will collect the goods himself and he does not pick up the goods on the agreed date, the custody of the goods awaiting the delivery or collection will be at the risks and costs of the customer.
In case, during the installation carried out by staff of Callens, circumstances should arise beyond the control of Callens as a result of which the activities must be interrupted (e.g. the place of installation is not ready, electric energy is lacking for the supply of its material, etc.) the lost hours and the useless transport costs will be invoiced to the customer. The same will apply when the putting into service of the installation cannot take place immediately upon installation for reasons beyond the control of Callens and an additional intervention by Callens is required, or when the intervention of Callens for repair is asked and this demand is cancelled less than 24 hours before the planned intervention. The cancellation shall be communicated by phone and by e-mail to Callens. Prior to each intervention, the customer will take the necessary steps to make sure the boiler is switched off and disconnected. This is a necessary condition to be able to carry out the intervention, in default whereof the costs of the intervention can be integrally charged to the customer.
Callens reserves the right, before or during the execution of the agreement, to ask the customer to make advance payments and to establish guarantees for payment of the purchase price and the execution of the agreement.
The costs for the establishment of such guarantees are at the charge of the customer. In case the customer should not respond to the request of Callens in this respect, Callens reserves the right to postpone the further execution of the specific or any other agreement with the customer until the customer has met the aforementioned request, or to consider the agreement with the customer by right and without prior notice of default as dissolved at the charge of the customer, in which case the customer will supplementary owe either a cancellation compensation in the sense of art. 2 or a severance compensation in the sense of art. 16 of the present general terms and conditions.
Callens and the customer explicitly declare that all agreements entered into between them are part of one and the same commercial relationship, and that all agreements between the customer and Callens are connected in the sense that all agreements between the customer and Callens constitute an economic unit. In the event of bankruptcy or dissolution of the buyer or if the buyer applies for an amicable settlement or the judicial reorganization in accordance with the law regarding the continuity of companies, Callens will have the right to balance any debt claims, whether or not claimable, existing at the moment of declaration of bankruptcy, dissolution or the application for one of the procedures of the law regarding the continuity of companies filed by the customer, at the charge of the latter, with the debts existing at that moment for the benefit of Callens, before making a payment whatsoever to the joint creditors of the bankrupt, dissolved company or the customer appealing to the law regarding the continuity of companies.
Except where stipulated otherwise, the following guarantee conditions will apply:
- Callens guarantees, with regard to all boilers and installations, the good functioning and the conformity with the features and special equipment determined by Callens, at the day of putting into service.
- from the putting into service and for a period of 12 months, Callens will carry out any set-up, repair and replacement of defective parts in order to have the installation function as provided and this with a maximum of 1,000 operating hours.
- during this period, defective parts will be repaired or replaced under guarantee.
- the labour hours and the transport costs do not come under this guarantee and will be charged.
- the guarantee does not include that the installation will operate without interruption or defect.
- this guarantee clause excludes any other explicit or tacit guarantee.
- for interventions asked outside normal working hours, the usual supplements will be charged.
- each necessary repair or replacement due to one of the following is not covered by this guarantee:
* non-respect of the manual or instructions for operation by the customer or by third parties;
* increasing the capacity of the installation by the customer or by third parties;
* modifying the concept of the installation, reparations or modifications made by the customer or by third parties;
* insufficient maintenance, abnormal or incorrect use or lack of surveillance by the customer or third parties;
* assemblies that have not been exclusively made by Callens;
* the putting into service that was not supervised and monitored by Callens;
*parts which because of their function are subject to wear or which after deregulation and non-notification by the customer lead to breakage;
* readjustment of the burner because of modification of the fuel quality.
- deliveries carried out by subcontractors and deliveries by suppliers of Callens are only guaranteed to the guarantee given by the subcontractor of Callens.
- this guarantee does not cover any production loss or repair of damage, if any, to other material than the material delivered by Callens.
- the duration of the guarantee will under no circumstance by suspended or interrupted.
- the guarantee clause only applies to new material.
- for hidden flaws, the guarantee offered by Callens is limited to one year as from the delivery or putting into service.
In any case, we cannot be held responsible for hidden flaws when the legal claim in this respect has not been introduced by the customer within a period of 6 months as from the delivery and/or the putting into service (depending on the kind of product and/or installation).
All invoices are payable at the registered office in Waregem, 30 days upon invoice date and without discount. In case of non-payment on the due date a delay interest of 12% per year will be due by right and without notice of default on the outstanding invoice amount. In addition, a fixed compensation will also be due by right and without prior notice of default to the amount of 10% of the invoice amount, with a minimum of 125.00 EUR and a maximum of 3,000.00 EUR. In the event of non-payment on the due date of one invoice, the balances due of all other invoices, even when not due, immediately by right and without notice of default become claimable. The non-payment of an invoice on the due date gives Callens the right to suspend all current orders, without the customer being entitled to any damage compensation. The balance invoice is considered being due by the customer as soon as the provisional acceptance took place.
Subject to explicit approval of Callens, the customer can receive the electronic invoice upon request. The same applies to the registration of the invoices by Callens in the customer’s invoice platform. In this case, Callens reserves the right to charge the extra costs this entails to the customer. Drawing and/or accepting bills of exchange and other negotiable documents does not constitute debt-rollover and does not constitute a deviation of the general terms and conditions. In guarantee of payment of the outstanding balance of its invoice(s) or the subrogated claims, the customer pledges to the benefit of Callens (i) all present and future debt claims on third parties, for any reason whatsoever, and therefore not limited to commercial debt claims, (ii) all present and future debt claims with regard to Callens and the companies affiliated to the latter, for any reason whatsoever, (iii) the delivered goods to which the invoice(s) relate(s), (iv) all movable tangible and intangible goods that belong to the property of the defaulting customer on the date of registration thereof in the pledge register, as well as (v) all movable tangible and intangible goods that will belong to the property of the defaulting customer just before the opening of an insolvency procedure attributed to the debtor. At the registration of the pledge in the pledge register, at the pledging or later, Callens has the right to charge the cost price of the registration as well as a fixed administration cost of 40.00 EUR to the defaulting customer.
Callens reserves the right to consider the agreement with the customer as dissolved by right and without prior notification of default at the charge of the customer in case of bankruptcy, judicial composition, suspension of payment or obvious insolvency of the customer, as well as in the event of any modification of the judicial form of the customer. In the event of non-respect of the customer of his obligations to pay with regard to Callens, the latter on the one hand reserves the right to postpone the further execution of the specific or any other agreement with the customer until payment in full by the customer of all overdue payments, and on the other hand to consider the agreement as dissolved by right and without prior notice of default at the charge of the customer. Pursuant to this dissolution, Callens, that remained the owner of the goods, will be allowed to recover the goods and sell these in order to limit all the damage and this 8 days upon registered letter sent to the defaulting buyer. In all cases in which the agreement with the customer is dissolved at the charge of the customer, the latter engages to pay a severance compensation within 8 days, which compensation is fixed at 40% of the value of the agreement in question, to the understanding that we can prove by all means the actual damage in case it would be more.
In case of force majeure for Callens the execution of the agreement is suspended as long as the situation of force majeure makes the execution impossible for Callens, without prejudice to the competence of Callens to dissolve the agreement without judicial intervention, in which case the customer is only bound to pay a reasonable compensation for the works performed.
Force majeure does not entitle the customer to dissolution or to damage compensation, or to termination. By force majeure, it is among other things understood: war, danger of war and riots, impeding measures of inland and foreign authorities, fire, strike, machine damage, lack of staff, obstruction of traffic, lack of means of transport, flood, exclusions, sabotage and in general all unforeseeable circumstances, both at home and abroad, as a result of which observance of the agreement cannot reasonably be demanded any longer from Callens.
The agreements are entered into in Waregem and are subject to Belgian law. All disputes to which the interpretation or execution of the agreement could give rise come under the exclusive territorial competence of the courts of the judicial district of Gent (division of Kortrijk).