GENERAL TERMS AND CONDITIONS OF SALE AND DELIVERY OF TRACKSTORE BVBA

 

I. GENERAL

 

1. These conditions are applicable to all offers and agreements of purchase/sale of items and/or of commission of TRACKSTORE BVBA in Sint-Katelijne-Waver (Belgium), hereinafter referred to as Trackstore, insofar as not otherwise specified in the offer or agreement. These conditions can be cited as Trackstore.

2. Additions to or derogations from these conditions must be agreed upon in writing; these additions and derogations apply only to the agreement for which they are made.

3. The rights and obligations from agreements between TRACKSTORE and the client cannot be transferred by the client to third parties except with written permission from TRACKSTORE.

 

II. OFFERS

 

1. All offers are non-binding and have a period of validity of 30 days unless otherwise agreed in writing. An offer that contains a time limit can nevertheless be revoked by TRACKSTORE, even after receipt of the order or commission, provided this takes place within 5 days.

 

III. AGREEMENTS

 

1. An agreement is deemed to have first legally taken effect after TRACKSTORE has confirmed the order or commission in writing or the implementation of the order or commission has begun. The content of the agreement is determined by the offer and/or commission confirmation from TRACKSTORE and these general terms and conditions.

 

 

IV. PRICES

 

1. All price quotations and the prices that TRACKSTORE charges are the prices in effect at the time of the offer or the time the agreement comes into effect, at the Sint-Katelijne-Waver location, excluding VAT as well as other costs connected with the agreement, such as duties, transport and tariffs.

2. If a change in one of the price-determining factors takes place after the offer is issued, TRACKSTORE is entitled to adjust the prices correspondingly, even if the agreement has come about in the meantime.

3. Price changes of more than 10% entitle the client to terminate the agreement, provided this takes place in writing and within seven days after receipt of our notification of this. Such a termination does not entitle the client to compensation for any damage whatsoever.

 

 

V. PAYMENT

 

1. The client is required to pay all invoices before the pickup and/or delivery of the items concerned or before the work concerned is performed (payment in advance), unless otherwise agreed in writing.

2. If invoices are not paid in cash in accordance with Article V, paragraph 1, the client is in default upon expiry of the agreed payment term alone, without the requirement of a notice of default, regardless of whether the late payment can be attributed to the client.

3. Without prejudice to its further rights, TRACKSTORE is then authorised to charge interest of 1% per month or part of a month on the outstanding amount, to be calculated as of the due date concerned.

4. All extrajudicial and judicial expenses incurred by TRACKSTORE in the context of a dispute with the client, as either claimant or defendant, are borne by the client.

5. Incoming payments apply to payment of the oldest outstanding items, interest and costs included, even if the client states otherwise in this respect.

6. In the event of late payment, an exchange rate difference unfavourable to TRACKSTORE is borne by the client. Reference dates are the due date of the invoice and the date on which payment is made.

 

 

VI. DELIVERY TIME, DELIVERY, RISK

 

1. The delivery term cited or agreed in the offer and/or sales agreement does not constitute a definitive deadline, even if it has been expressly accepted by the client. In the event of late delivery TRACKSTORE is therefore in default only after written notice of default. The delivery term is also understood to include repair time.

2. The cited or agreed delivery term is in any case, but not exclusively, automatically extended by the period(s) during which:

-there is delay in supply and/or shipment, and/or any other circumstance that temporarily hinders implementation, regardless of whether it can be attributed to TRACKSTORE;

-the client fails in one or more obligations to TRACKSTORE, or there exists a well-founded fear that he will fail, regardless of whether the reasons for this are well-founded or not;

-the client does not enable TRACKSTORE to implement the agreement; this situation occurs among other things if the client fails to communicate the place of delivery or provide the information, items or facilities necessary for implementation.

3. Delivery in Belgium is made from the location in Sint-Katelijne-Waver, unless otherwise agreed in writing. All items are transported at the expense and risk of the client, even if the shipment takes place free of charge.

 

 

4. If TRACKSTORE provides for shipment of the items at the request of the client, or if the agreed incoterms make this the responsibility of TRACKSTORE, the time, method of shipment, and shipment route are at its discretion. Transport insurance is only taken out by TRACKSTORE at the express request of the client; all related costs are the client’s responsibility.

5. Delivery is deemed to have taken place at the time that the items have been made available to the client by TRACKSTORE.

If the client does not collect the items, they are stored at his expense and risk or sold by TRACKSTORE. TRACKSTORE is entitled to recover its claim from the proceeds.

6. Delivery outside Belgium takes place Ex Works (EXW) Incoterms 2000, unless one of the other Incoterms of the International Chamber of Commerce (ICC), Edition 2000, is agreed upon in writing.

7. Partial deliveries are allowed.

 

 

VII. GUARANTEE/DISPUTES

 

1. The items delivered by TRACKSTORE fulfil the specifications as described on the sales invoice/proforma. No guarantee is in general granted unless otherwise indicated. Guarantee claims are not transferable to third parties.

2. On penalty of lapse of his right to dispute, the client should report complaints with regard to the invoice amount or visible defects in the items delivered within 5 days after receipt or delivery to TRACKSTORE in writing, together with an accurate description of the complaint/dispute. For all other disputes a period of 14 days after the defects have become known or could have been known applies. The items concerned are to be made available to TRACKSTORE for examination at first request.

3. Disputes are not possible if:

-The items have been used for a purpose other than for which they are normally intended, or in the opinion of TRACKSTORE have been improperly used or transported or have been repaired by the client or a third party;

-The damage has been caused by negligence of the client (for example, by inadequate maintenance) or because the client has acted contrary to instructions, directions and advice of TRACKSTORE;

-Parts are involved on which the seal is broken, or that tend to be replaced regularly during maintenance or service, or that are accessories;

-The client has not fulfilled his obligations to TRACKSTORE (both financial and otherwise).

4. If the client, in compliance with the provisions of this article, disputes a certain element and his complaint is found to be justified by TRACKSTORE, TRACKSTORE will at its discretion replace the items concerned free of charge (after which the replaced items become its property) or repair or grant a price reduction on the items.

 

 

5. Handling of a dispute does not suspend the client’s obligation to pay.

6. If a dispute outside the cases described above is taken up, this occurs entirely without obligation and the client can derive no rights from this.

 

VIII. INSPECTION

 

1. The client in entitled to inspect the items before delivery, at his own expense, at the time and place determined by TRACKSTORE.

 

IX. NONCOMPLIANCE/TERMINATION/SUSPENSION

 

1. TRACKSTORE is authorised to terminate the agreement with immediate effect, without judicial intervention, in whole or in part, or suspend implementation, without prejudice to its other rights (to compliance and/or damages) if:

-the client acts contrary to any provision of the agreement between the parties;

-the client requests suspension of payment or declares bankruptcy;

-the client has filed for bankruptcy;

-the client’s company has ceased operations or been liquidated.

In these cases any claim on the client is immediately payable, without TRACKSTORE being bound to any payment for damages or guarantee.

2. The provisions in paragraph 1 of this article are correspondingly applicable if the client, after having been requested to do so in writing, has not in the judgment of TRACKSTORE provided adequate security within seven days.

3. If the client remains in default with payment and/or pickup for more than fourteen days, TRACKSTORE is entitled to resell the items sold without further notice, in which case the deposit made to TRACKSTORE lapses as compensation for the damage it has incurred, in the absence of proof to the contrary delivered by the client that this damage is less.

 

X. RETENTION OF TITLE

 

1. Delivery takes place under retention of title. This retention applies with regard to claims to payment for all items delivered or to be delivered by TRACKSTORE to the client by virtue of any agreement, and/or work performed in the context of delivery, as well as with regard to claims due to failure of the client in observing these agreements.

 

 

2. In the cases cited in Article IX, TRACKSTORE is authorised to reclaim the items delivered that in accordance with the previous paragraph have remained its property. Such recovery is considered a termination of the agreement(s) concluded with the client. The client irrevocably authorises TRACKSTORE to remove/have removed the items concerned from the place where they are located insofar as necessary.

3. The client is authorised, if and insofar as necessary in the context of his normal business operations, to have possession of the items to which retention of title applies. If the client makes use of this authorisation, then he is likewise required to deliver the items to which the retention of title applies to third parties only subject to the property rights of TRACKSTORE. He is also required to grant TRACKSTORE a lien on claims that he has or shall have on these third parties at first request. If the client refuses to do so, this provision acts as an irrevocable mandate to TRACKSTORE to establish this lien.

 

 

XI. RIGHT OF RETENTION

 

1. TRACKSTORE is entitled to withhold delivery of certain machines and/or goods (that are with us for repair/inspection/preparation for sale or transport) until all outstanding amounts have been paid, even if these machines or goods are not the property of TRACKSTORE.

 

 

XII. TRADE-IN

 

1. If the client continues to use a traded-in motor vehicle pending the delivery of the motor vehicle he has ordered, all costs with regard to the former motor vehicle and any depreciation thereof are his responsibility.

 

XIII. LIABILITY

 

1. TRACKSTORE is not liable for damage arising as a consequence of any deficiency in fulfilment of its commitment(s) to the client. Fulfilment of the obligations from a guarantee/disputes as described in Article VII is considered the sole and full compensation.

 

 

Any other claim for damages for consequential loss and/or loss of profits (damage due to downtime, loss of revenue and other indirect damage of any nature whatsoever) and damage resulting from liability toward third parties is expressly excluded, unless it involves intentional acts or gross negligence of TRACKSTORE or managerial employees.

2. TRACKSTORE is also not liable for intentional acts or (gross) negligence of (non-managerial) employees or of others it has called upon in the context of implementation of the agreement.

3. TRACKSTORE accepts no liability for advice provided by it or on its behalf.

4. TRACKSTORE is not liable for damage to motor vehicles of third parties that are located on its property.

 

XIV. FORCE MAJEURE

 

1. By force majeure in the sense of these general terms and conditions is meant any circumstance outside the will and control of TRACKSTORE, whether or not foreseeable at the time the agreement was entered into, as a consequence of which compliance cannot reasonably be demanded from TRACKSTORE, such as war, government measures, lack of raw materials, factory or transport disruptions of any nature whatsoever, strikes, lockout or lack of personnel, quarantine, epidemics, stoppage due to freezing weather, deficiency of third parties who have been called in by TRACKSTORE for purposes of implementing the agreement, etc.

 

 

XV. PARTIAL NULLITY

 

1. If one or more provisions of this agreement with the client is/are not or not entirely legally valid, the other provisions remain in full effect. An appropriate arrangement that approaches the intention of the parties and the intended economic result as closely as possible in a legally valid way applies in place of the invalid provision.

 

 

XVI. PLACE OF PERFORMANCE, APPLICABLE LAW, COMPETENT COURT

 

1. The place of business of TRACKSTORE is the place where the client must fulfil his obligations to TRACKSTORE.

2. Belgian law exclusively is applicable to all offers and agreements of TRACKSTORE.

3. All disputes that arise as a result of the agreement concluded between the client and TRACKSTORE or of further agreements that may be the consequence thereof shall be settled by the competent court of Mechelen.