Article 1: Scope
1.1 The present General Terms and Conditions of Sale shall apply to all quotes, orders, assignments, agreements, deliveries and invoices of CHEERGY BV, a private limited liability company under Belgian law, with registered office at Zeedijk-Knokke 645 box 5/71 (Legal Entities Register (RPR) Ghent – division Bruges) and company number 1015.720.256 (hereinafter referred to as “CHEERGY”), including all orders placed by the customer.
1.2 The customer’s assignment or order, or the acceptance of the quote raised by CHEERGY shall be considered as acceptance of the present General Terms and Conditions of CHEERGY. Specific provisions, which derogate from the present General Terms and Conditions, shall be binding only if they have been agreed and laid down in writing. CHEERGY shall accept the application of the customer’s general terms and conditions only where this has been expressly agreed and laid down in writing.
1.3 In the event of discrepancies between a provision set out in the quote/order/agreement and a provision of the present General Terms and Conditions, the provisions of the quote/order/agreement shall prevail, albeit solely for the part which expressly derogates from the present General Terms and Conditions.
1.4 The customer hereby expressly acknowledges that the present terms and conditions may change in the future, to the effect that, for every order, the customer shall be deemed to have read, accepted and approved the General Terms and Conditions in place at that point in time.
Article 2: Quotes/orders
2.1 In all cases, the agreement between the customer and CHEERGY shall be deemed to have been concluded at CHEERGY’s registered office. In no way whatsoever a distance contract within the meaning of Book VI of the Economic Law Code shall be established between CHEERGY and the customer.
2.2 All special offers and/or quotes are without obligation at all times and are not binding on CHEERGY, unless expressly agreed otherwise. Orders taken by a CHEERGY representative become final only upon written confirmation by an authorised CHEERGY representative.
2.3 For all orders and except if agreed otherwise in writing between CHEERGY and the customer, payment shall take place according to the following schedule: 30% advance payment upon confirmation of the order and 70% before shipment and after acceptance of the goods by the customer.
2.4 At all times, the prices, discounts and terms and conditions specified in the confirmation of the quote/order are expressed in the currency stated in the quote/order and are exclusive of VAT, delivery and transport costs and other taxes and costs which are payable by the customer. All and any increases in the VAT rate or any other taxes of any kind between the time of order confirmation by CHEERGY and the time of delivery to the customer, shall be borne by the customer. CHEERGY can ask for advance payments at any time. If the advance payment is not paid by the customer, CHEERGY shall not be obliged to deliver the ordered goods.
2.5 Prices specified in the confirmation of the quote are strictly provided as an indication, on the understanding that the fulfilment of the order is made to occur based on the prices, discounts and terms and conditions as applicable on the day of delivery. CHEERGY reserves the right to change the prices specified in the confirmation of the quote at any time, in the event the prices, discounts and terms and conditions were to change further to confirmation of the quote, for instance in case of major currency fluctuations of domestic as well as foreign currencies, raised social security charges, etc.
2.6 Changes of any kind to the original order accepted by CHEERGY, made or requested by the customer in writing or verbally, shall be billed additionally to the customer and shall extend the delivery period.
2.7 In no event shall CHEERGY be under an obligation to store the ordered goods of the customer beyond the delivery term. Where the customer wishes for CHEERGY to store the customer’s goods, the customer shall notify CHEERGY in writing. In said case, the storage shall be at the risk of the customer, who hereby expressly releases CHEERGY from all and any liability in connection with said storage (including loss or damage), except in the case of wilful intent or gross negligence on the part of CHEERGY.
Article 3: Delivery and delivery dates
3.1 In all cases, the goods ordered by the customer shall be deemed to have been sold, delivered and accepted ex-works (last applicable Incoterms). The goods consequently travel at the customer’s risk at all times, even when delivery is carriage paid. Where the goods are sold carriage paid, CHEERGY shall bear the transport costs only as far as the address specified by the customer.
3.2 All delivery dates are provided by CHEERGY for information purposes only and non-binding for CHEERGY. No delay in the delivery shall constitute grounds for the agreement to be dissolved or terminated at the expense and to the detriment of CHEERGY, nor shall it entitle the customer to any kind of compensation, except where the deadline was deliberately not met or where the delay is the result of gross negligence on the part of CHEERGY.
3.3 Orders placed by the customer and accepted by CHEERGY, must be collected within the period agreed. Where the goods fail to be collected within the period agreed, CHEERGY shall be within its rights to cancel the agreement in whole or in part, by operation of law and without prior notice, to the detriment and at the expense of the customer. In said case, CHEERGY shall be free to decide, at its own discretion, to either (i) bill the customer a flat rate sum in compensation in the amount of the respective order or (ii) to force the customer to accept delivery.
Article 4: Guarantee
4.1 Photographs, representations, specifications and information found on the CHEERGY website, catalogues, brochures, price lists and other commercial documents shall not be considered binding on CHEERGY. In all cases, the goods delivered shall be subject to a number of tolerances. The customer hereby acknowledges that tolerances may occur and that CHEERGY shall on no account accept liability for damages or accept for the agreement to be dissolved or terminated at the expense and to the detriment of CHEERGY, where said tolerances occur, except if such tolerance affects the functioning of the delivered goods.
4.2 Flaws caused by accidents, negligence or misuse (by the customer or a third party) are not covered by any kind of guarantee. The guarantee also ceases to apply where the customer and/or third parties made adjustments to or carried out work on the delivered goods.
Article 5: Flaws and complaints
5.1 All complaints relating to non-conformity of deliveries and invoices must reach CHEERGY within five (5) working days counting from the delivery of the goods or the date on which the invoice was sent. Said complaint must be made by registered letter, except in the situation detailed in article 5.3.
5.2 Complaints relating to the contents, the condition and the quantities as well as the conformity of the goods ordered must be made on the delivery note (if applicable) and at least at the time of delivery-acceptance where they relate to visible flaws and where the customer may reasonably establish said defects at the time of delivery. If the customer is not present at the delivery, the customer must make his objections known to CHEERGY by registered letter within five (5) working days after delivery.
5.3 Complaints relating to non-conformity of the delivery, which could not be established at the time of delivery, must be notified to CHEERGY within one month after the discovery of the defect in question, by way of registered letter stating the specific grounds. For hidden defects, CHEERGY shall accept liability only if the customer is able to serve proof that the flaw was already present in the bud at the time of delivery and provided the defect becomes apparent within twelve (12) months from the date of delivery.
5.4 Any complaints entered beyond the time limits set out in articles 5.2 and 5.3, or which fail to comply with the formalities as detailed therein, shall be considered late or incorrect by CHEERGY and shall on no account constitute grounds for CHEERGY to take any kind of action.
5.5 CHEERGY hereby undertakes to treat complaints made within the time limits specified in articles 5.2 and 5.3 and in compliance with the applicable formalities, within a reasonable period of time. Complaints found to be duly justified compel CHEERGY to replace the non-compliant goods, without the customer being entitled to any kind of compensation or suspension of payment. The processing of the delivered goods by the customer implies acceptance of the goods on the part of the customer.
Article 6: Liability
6.1 CHEERGY shall accept liability solely for direct loss or damage that is due to actions or omissions by a designated person or staff member of CHEERGY or by CHEERGY itself. On no account shall CHEERGY accept liability for indirect and/or consequential loss or damage, including albeit not limited to loss of reputation, loss of opportunity, loss of profits or turnover, loss of savings, etc., nor in the case of a fault/omission by a third party, such as CHEERGY’s suppliers, manufacturers, etc.
6.2 At all times, any liability on the part of CHEERGY shall be limited to the value of the agreement/quote, except in the case of fraud or malicious intent on the part of CHEERGY.
6.3 it is expressly agreed that the recovery of damages caused by an auxiliary person is only ground for a liability claim against the principal debtor and not ground for a liability claim against the auxiliary person, even if the event giving rise to the damages is tort.
Article 7: Invoices
7.1 Unless expressly specified otherwise on the invoice or in the quote/agreement, all CHEERGY invoices are payable at CHEERGY’s premises or upon receipt of the invoice, in which case the invoice must be paid within fourteen (14) calendar days, at least in conformity with article 2.3. By operation of law and without prior notice of default, on all invoices not paid on the due date the interests specified in the Act on payment arrears in commercial transactions (02/08/2002) shall be applicable as well as an indemnity to cover the recovery costs, conventionally set at fifteen percent (15%) of the outstanding debt with a minimum of one hundred and twenty-five euros (125,00 EUR). In all cases, CHEERGY shall be within its rights to claim a higher sum in compensation if it is able to serve proof that it incurred greater loss.
7.2 Late payment of one invoice shall result in other invoices, for which a payment term was granted, becoming instantly claimable by operation of law and without prior notice of default.
7.3 Where the customer fails to make the agreed payments, even if these are partial payments, CHEERGY shall be within its rights to suspend its services/deliveries until the customer has fully complied with its payment obligations. The suspension shall not give rise to any compensation for the customer.
Article 8: Title of ownership
8.1 It is hereby expressly agreed that the title of ownership over the delivered goods shall exclusively remain with CHEERGY until the time payment, including additional costs, is received in full.
8.2 CHEERGY shall be free at all times to invoke article 8.1 from five (5) working days after the date on which notice of default demanding payment was served by registered letter and such payment was still not made. In that case, the goods are to be immediately returned to CHEERGY on simple request, at the customer’s expense and without prejudice to CHEERGY’s entitlement to indemnification in full.
8.3 In the event the customer goes bankrupt, requests protection against its creditors or in any other way ceases its activities, CHEERGY reserves the right to claim the return to CHEERGY of the goods sold, by simple request addressed to the person who is in possession of the goods in question.
Article 9: End of the Agreement
9.1 The agreement shall be deemed to be terminated by operation of law in the event of bankruptcy, judicial composition, tax or social security debts, the application of the Continuity of Companies Act, admission to collective debt mediation or any other form of liquidation of the customer. CHEERGY shall be entitled to immediate payment for all services and goods delivered up until this time, without prejudice to its right to indemnification in full.
9.2 CHEERGY shall be within its rights to terminate the quote/agreement in whole or in part by way of a registered letter, if the customer fails to comply with its obligations within fourteen (14) calendar days after having been served notice of default to this end by registered letter.
9.3 In case of unilateral termination of the agreement by the customer or in case of dissolution of the agreement to the detriment and at the expense of the customer, a flat rate sum in compensation in the amount of 25% of the agreed price is due, in addition to any advance payments already made, which shall be considered as definitively acquired in this case. Said sum in compensation shall be non-refundable and both CHEERGY and the customer hereby agree that said loss constitutes the loss actually incurred.
Article 10: Personal data
10.1 It may be that CHEERGY processes certain personal data in the fulfilment/performance of the quote/agreement. In all cases, any such processing is carried out in the context of the contractual relationship between the customer and CHEERGY. CHEERGY hereby undertakes to only process personal data that are strictly necessary to properly fulfil/perform the quote/agreement.
10.2 It may be the case that personal data are shared with third parties. In all cases, any such disclosure is made to occur in the context of the performance of the agreement and shall be limited to what is strictly necessary.
10.3 CHEERGY shall store personal data for the period necessary to accomplish the purposes of the quote/agreement unless a longer data retention period is required or justified by law or another statutory obligation.
10.4 Under the General Data Protection Regulation, data subjects have a number of rights in respect of the processing of their personal data. These rights: the right to consult their data, obtain a copy of their data, to have their personal data erased, the right to seek the use of their data to be limited and the right to the transferability of their data. The customer is entirely within its rights to exercise these rights at all times. However, where the exercise of any one of these rights results in CHEERGY no longer being able to properly perform/fulfil the agreement/quote, CHEERGY shall be within its rights to terminate the agreement with immediate effect and without being liable for any compensation.
Article 11: Force majeure
11.1 Situations of force majeure and, more generally, all circumstances which act to prevent, reduce or delay the performance/fulfilment of the agreement/quote by CHEERGY shall release CHEERGY from all and any liability and allow the latter, depending on the situation, to either reduce the scope of its obligations, to terminate the agreement or to suspend the performance thereof, without being liable for any compensation. The following, in amongst other circumstances, are considered instances of force majeure: war, civil war, call to arms, industrial action (strikes), rioting and lock-outs, both at CHEERGY and at its suppliers, equipment breakdown, viruses or malware or bugs, fire, water damage, pandemics, interruption of transport, difficulties with the supply of raw materials, materials and energy and restrictions or prohibitions imposed by the government.
11.2 With respect to the delivery deadlines, it is hereby expressly agreed that force majeure shall be said to exist on the part of CHEERGY if, in derogation from the agreements put in place between CHEERGY and its suppliers, the latter were to fail to deliver materials/goods on time.
Article 12: General provisions
12.1 Any person or company that places an order with the request to bill said order to a third party shall be held jointly and severally liable for the payment thereof.
12.2 If one or more provisions of the present General Terms and Conditions are found to be contrary to applicable law or null and void for any other reason, the remaining provisions shall continue to apply in full force and effect, and the clause in question shall not be void but shall be applied within the confines of what is legally permissible.
12.3 Without CHEERGY’s prior written consent, the customer shall not be allowed to transfer the rights and obligations it has vis-à-vis CHEERGY to third parties.
12.4 CHEERGY reserves the right to outsource all or part of the fulfilment of the order to sub-contractors.
12.5 CHEERGY shall be free to use the quote/agreement as a reference for its commercial activities, without the customer’s prior written consent.
12.6 The non-exercise by CHEERGY of any of its rights shall on no account be construed as a waiver of said rights.
Article 13: Applicable law and courts of competent jurisdiction
13.1 Any disputes between CHEERGY and the customer shall be solely governed by Belgian law, to the exclusion of any other national bodies of law, excluding its conflicts of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is hereby expressly ruled out.
13.2 All disputes of any kind, with the inclusion of those relating to the application and interpretation of the present General Terms and Conditions, the agreement/quote or any other binding documents agreed between CHEERGY and the customer, shall be exclusively heard by the courts of competent jurisdiction of the legal district of Antwerp, division Mechelen, Belgium, without prejudice to CHEERGY’s right to summon the customer to appear before the court of competent jurisdiction of its place of residence or registered office.