1.1 These General Terms and Conditions apply to every offer and every contract (including those concluded electronically) between Agrivaux SA, as seller or supplier, on the one hand, and the contracting party, as buyer or customer (hereinafter: the “customer”), on the other hand, relating to the sale and supply of goods and related services (jointly referred to as the “products”) by Agrivaux to the customer.
1.2 Terms or clauses that deviate from these General Terms and Conditions are valid only if and insofar as Agrivaux has expressly agreed them with the customer in a written agreement and only in relation to the contract in which those terms are included; in all other respects, these General Terms and Conditions remain fully applicable.
1.3 Once the customer has concluded a contract with Agrivaux on the basis of these General Terms and Conditions, or has otherwise become aware of them or can reasonably be presumed to have become aware of them, these terms shall also apply to every contract subsequently concluded with Agrivaux, even if no express reference to these terms or statement that they apply to the contract is made when that contract is concluded.
1.4 Agrivaux hereby expressly rejects the application of the customer's general terms and conditions.
2.1 All offers made by Agrivaux are non-binding and may be withdrawn by Agrivaux at any time, even if they specify a period for acceptance.
2.2 Offers may only be accepted in writing. Agrivaux nevertheless has the right to accept another form of acceptance as if it had been made in writing.
2.3 Unless otherwise stated by Agrivaux, both oral and written offers automatically expire if they are not accepted in writing by the customer within ten working days.
2.4 Designs, images, drawings, calculations, dimensions, capacities, weights, yields, models and other data supplied by Agrivaux, including where applicable those appearing in its catalogues, brochures, advertisements, websites and elsewhere, are as accurate as possible. Unless expressly agreed otherwise in writing, however, the customer may not rely entirely on their accuracy or completeness and they are not binding.
3.1 All prices quoted by Agrivaux exclude VAT, other costs and surcharges, including transport costs, unless otherwise agreed in writing.
3.2 Agrivaux's prices and any surcharges are based on exchange rates, material prices, transport costs and wages applicable at the time of the offer. If, after the offer or conclusion of the contract, Agrivaux incurs additional costs due to increases in material prices, transport costs, wages, import or export duties and/or costs of any kind, or costs caused by exchange-rate changes, Agrivaux is entitled to pass these additional costs on to the customer.
4.1 Unless otherwise agreed, Agrivaux is responsible for transporting the ordered products to the delivery address.
4.2 “Delivery time” means a period set by Agrivaux within which the products may be delivered. This period is determined by Agrivaux to the best of its ability on the basis of the information and circumstances known to it when the period is set. Agrivaux will endeavour to meet the delivery time.
4.3 Unless expressly agreed otherwise in writing, specified and/or agreed delivery times are indicative only and are not binding. In the event of late delivery, the customer must give Agrivaux formal notice and allow a reasonable period, it being understood that a period of less than ten working days shall in no event be considered reasonable.
4.4 Late delivery does not entitle the customer to claim compensation for any damage or costs, refuse receipt of the ordered products or terminate the contract.
4.5 If circumstances arise other than those known to Agrivaux when the delivery time was set, Agrivaux is entitled to extend the delivery time by the period required to deliver the product.
4.6 Agrivaux reserves the right to deliver orders in instalments, it being understood that the payment terms set out in Article 6 below shall also apply to each partial delivery.
4.7 Unless otherwise agreed, delivery takes place at the address at which the customer's registered administrative address is located.
4.8 Unless otherwise agreed, products are deemed delivered when the carrier, acting on behalf of Agrivaux, delivers them to the delivery address. If transport is carried out on behalf of the customer, the products are deemed delivered when Agrivaux hands them over to the carrier.
4.9 If the ordered products are delivered when no customer representative is present to receive them and no secure, enclosed area at the delivery address has been made available for the carrier to leave them, the carrier's statement that the products were delivered in good condition shall constitute sufficient and complete proof of delivery in good condition.
4.10 Agrivaux does not refund or accept products returned by the customer unless this has been expressly authorised in advance by Agrivaux and the return is made in accordance with the conditions imposed by Agrivaux. In the event of an unauthorised return, transport and storage are at the customer's expense and risk.
The risks relating to delivered products pass to the customer upon delivery, which occurs at the time specified in Article 4.8. Such risks include, without limitation, loss, damage, storage, loading, transport and unloading, or any other reduction in value of the delivered products.
6.1 Unless otherwise agreed, the customer agrees that Agrivaux may send invoices electronically by email.
6.2 Payment must be made within 30 days of the invoice date, in the currency stated on the invoice, unless other payment terms have been agreed.
6.3 Agrivaux's entire payment claim against the customer becomes immediately due and payable if:
6.4 A payment shall first be applied to costs, then to accrued interest and finally to the oldest outstanding principal amount.
6.5 If the payment deadline is exceeded, the full invoice amount shall automatically and without prior notice be increased by the statutory interest applicable to commercial transactions under the applicable legal provisions (currently the Belgian Act of 2 August 2002 on combating late payment in commercial transactions). For the calculation of accrued interest, any part of a month shall be treated as a full month.
6.6 The customer is not entitled to reduce or set off an Agrivaux claim against an amount allegedly owed by Agrivaux to the customer, whether or not that claim is due, unless Agrivaux is bankrupt.
6.7 All collection costs incurred after the customer is in default, both judicial and extrajudicial, shall be borne by the customer. Extrajudicial costs are fixed at a minimum of 15% of the principal amount and interest due, with a minimum of EUR 25 excluding VAT, without prejudice to Agrivaux's right to claim the actual extrajudicial costs from the customer where these exceed the minimum amount.
6.8 If the customer fails to perform any obligation arising from the contract towards Agrivaux, or if Agrivaux can reasonably assume that the customer will not or cannot perform any of its obligations in the future, Agrivaux may, without being liable for any compensation, choose to:
6.9 Irrespective of the agreed payment terms, at Agrivaux's first request the customer must provide sufficient security, in the form required by Agrivaux, for the performance of its financial obligations towards Agrivaux. If the customer fails to do so within a reasonable period, the customer is in breach of contract and Agrivaux is entitled to take the measures set out in these General Terms and Conditions, including terminating the contract and claiming compensation from the customer.
7.1 The customer must inspect the products as soon as possible after delivery and notify Agrivaux in writing of any apparent defects no later than 24 hours after delivery. Agrivaux accepts no liability for such defects if they are reported after this period and shall then have no obligation to repair or replace the delivered products. In addition, the customer may not return the product to Agrivaux.
7.2 The customer has a general duty to inspect for defects other than those referred to in Article 7.1. If, after inspection, the customer considers the product defective, or should have known that it was defective, the customer must notify Agrivaux in writing as soon as possible and no later than 8 days after discovering or having reasonably been expected to discover the defect, together with a sufficiently detailed description of the nature and extent of the defect. If the complaint is submitted on time, the customer shall allow Agrivaux to inspect the product concerned; otherwise the complaint will not be processed.
7.3 If Agrivaux considers the complaint justified, it shall be given the time required to carry out the repair it considers necessary or, at Agrivaux's option, replace the defective product with another product. Where defective products are replaced, account may be taken of the customer's use of them in the meantime and Agrivaux may claim appropriate compensation.
7.4 Even complaints submitted on time will not be processed and the products concerned cannot be taken back if it appears that they have been modified or repaired without Agrivaux's authorisation, unless this was done with Agrivaux's consent.
7.5 In the event of a late or incorrect complaint, the delivered products are deemed to conform to the contract and Agrivaux is entitled to charge the customer the costs incurred in handling the complaint. Submitting a complaint does not entitle the customer to suspend payments and does not release the customer from payment obligations towards Agrivaux.
7.6 The customer must submit complaints to Agrivaux concerning amounts shown on invoices as soon as possible and no later than one week after receipt of the invoice, in writing, failing which the customer's rights shall lapse. Otherwise, the complaint will not be processed and the customer will remain liable to Agrivaux for the invoice amount.
8.1 With regard to the repair or correction of defects in products supplied by Agrivaux, Agrivaux's warranty obligations shall not exceed the scope of the supplier's warranty obligations towards Agrivaux.
8.2 Only defects that existed at the time of delivery but were not visible and become apparent within three months after delivery shall be remedied by Agrivaux by replacement or in another manner determined by Agrivaux.
8.3 The warranty referred to in Article 8.2 applies only to defects that were not reasonably detectable at the time of delivery and that occur under normal conditions of use and when the delivered goods are used correctly. It does not cover defects arising from or related to insufficient maintenance or repairs carried out by or on behalf of the customer, nor defects resulting from normal wear and tear. No warranty is granted for products that were not new at the time of delivery.
8.4 The customer may invoke the rights referred to in Articles 8.1 and 8.2 only if the customer:
8.5 Unless the nature of the defect requires repair to be carried out at the location of the product, the customer shall return any defective part of the goods to Agrivaux at the customer's own expense for repair or replacement. Agrivaux shall be deemed to have fulfilled its warranty obligation once the repaired part or a replacement part has been made available by Agrivaux to the customer or the customer's carrier.
8.6 Defective products replaced by Agrivaux under this Article automatically become the property of Agrivaux after replacement.
8.7 An allegation that Agrivaux has failed to fulfil its warranty obligation does not release the customer from obligations towards Agrivaux arising from the contract concluded with Agrivaux or from other contracts concluded with Agrivaux.
8.8 The customer may not assign its rights under this Article.
9.1 Without prejudice to the provisions below, Agrivaux shall under no circumstances be liable for damage caused by improper use of the delivered products or by their use for purposes other than those for which they are suitable.
9.2 Except for the fulfilment of Agrivaux's warranty obligations pursuant to Articles 8.1 and 8.2 and except for mandatory or public-order provisions, all liability on the part of Agrivaux (including all forms of direct or indirect damage, loss of profit and damage caused by a wrongful act) is excluded, unless and insofar as there is intentional misconduct or gross negligence on the part of Agrivaux, and except for liability expressly accepted by Agrivaux in writing. In all cases of direct damage, personal injury, delay compensation or any other damage, Agrivaux's liability shall be limited to compensation equal to the invoice amount owed by the customer to Agrivaux for the relevant delivery to the customer (excluding VAT).
9.3 Agrivaux is not liable for advice, information, recommendations, etc. given orally or in writing.
9.4 The customer shall indemnify and defend Agrivaux against any third-party claim for damage resulting from a product supplied by Agrivaux to the customer. The customer is required to take out and maintain adequate insurance, insofar as necessary in connection with the indemnity provided for in this Article, covering such liability.
9.5 The customer shall indemnify and defend Agrivaux against any third-party claim concerning the use of designs, images, drawings, calculations, dimensions, capacities, weights, yields, models and other data supplied by or on behalf of the customer.
9.6 The provisions of this Article also apply to Agrivaux's employees and agents.
10.1 All products delivered or to be delivered under all contracts concluded between Agrivaux and the customer (including products already paid for by the customer) remain the property of Agrivaux until all claims relating to those deliveries which Agrivaux has or will have against the customer have been paid in full.
10.2 Until ownership of the products has passed to the customer, the customer may not dispose of or encumber them (i.e. pledge, mortgage or grant any other right to or for the benefit of third parties). At Agrivaux's first request, the customer undertakes to cooperate in pledging the claims that the customer obtains or will obtain against its own buyers as a result of the resale of products supplied by Agrivaux.
10.3 The customer is obliged to keep products delivered by Agrivaux under retention of title with due care, clearly identifiable as Agrivaux's property and in a location separate from other goods.
10.4 Agrivaux has the right to repossess products delivered to the customer under retention of title and still present at the customer's premises if the customer fails to meet its payment obligations, if one of the situations referred to in Article 6.2 applies, or if the customer has or threatens to have payment difficulties. The customer shall at all times provide free access to its premises and/or buildings for inspection of the products and/or exercise of Agrivaux's rights.
10.5 The provisions of Articles 10.1 to 10.4 do not affect Agrivaux's other rights.
11.1 Unless otherwise agreed in writing, Agrivaux retains copyright and all industrial and intellectual property rights relating to its services and creations, including, without limitation, offers, designs, images, drawings, models, prototypes, programming and other materials developed by it.
11.2 The rights relating to the services referred to in Article 11.1 remain the property of Agrivaux even if costs have been invoiced to the customer for their production. These materials may not be reproduced, used or made available to third parties without Agrivaux's express prior written consent.
12.1 In the event of force majeure, Agrivaux may, at its option, terminate the contract or suspend delivery until the force majeure event ceases, without the customer being entitled to claim any compensation.
12.2 In the event of force majeure, the customer has the right to terminate the contract after six months and only in respect of the part of the contract that has not yet been performed.
12.3 Force majeure on the part of Agrivaux includes, but is not limited to, situations in which, after conclusion of the contract, Agrivaux is permanently and/or temporarily prevented from fulfilling or preparing to fulfil its contractual obligations due to fire, water damage, flooding, strikes, occupation of the company, import or export restrictions, government measures, failures in energy supply, failures by Agrivaux's suppliers, transport delays or impediments, and all other causes occurring outside Agrivaux's fault or risk.
12.4 Agrivaux shall inform the customer of the occurrence of the force majeure event as soon as possible.
13.1 Unless otherwise provided, all communications concerning the contract or its performance must be made in writing. Email also satisfies the requirement of “writing” within the meaning of these terms.
13.2 Complaints concerning performance and formal notices from the customer must be sent by registered mail, clearly stating what is required and within what period. This also applies to setting any other deadline and invoking termination of the contract. Any notice of termination must clearly state the reasons.
14.1 The contract concluded with the customer is governed exclusively by Belgian law. The United Nations Convention on Contracts for the International Sale of Goods (CISG) is excluded.
14.2 As a reciprocal guarantee and commitment to the rapid settlement of disputes by arbitration, the Belgian Arbitration Institution (I.B.A.) shall appoint the arbitrators competent to settle definitively any dispute arising from this contract, in accordance with its rules of procedure, which may be obtained free of charge from I.B.A., Lieven Bauwensstraat 20, 8200 Bruges (tel. 050/32.35.95 and fax 050/45.60.74). This clause replaces any conflicting jurisdiction clauses.