GENERAL CONDITIONS OF SALE – FUSED MACHINERY
ARTICLE 1 - APPLICABILITY OF THE CONDITIONS
Unless otherwise expressly agreed upon in writing, only these terms and conditions apply to all sales, deliveries and services, as well as to all offers by FUSED MACHINERY, trade name of DSF CONSULTING BV, CBE nr. 0665.909.750, with registered office at 3500 Hasselt, Arnold van Loonlaan 26 (“FUSED MACHINERY”), to the buyer of such goods and/or services (“Buyer”). These general terms and conditions are accepted by the mere fact of negotiating with, ordering from or concluding an agreement with FUSED MACHINERY. The present general terms and conditions explicitly exclude all other general terms and conditions and always take precedence over any other general terms and conditions.
ARTICLE 2 - OFFERS AND ORDERS
2.1. The offers of FUSED MACHINERY are valid for the duration and under the conditions indicated in writing in such offer. Failing this, an offer remains valid for 30 calendar days.
2.2. Any order is valid and binding for the Buyer after being communicated in writing to FUSED MACHINERY. Except for the explicit prior agreement of the latter, the order cannot be changed or cancelled by the Buyer. The orders will only be binding for FUSED MACHINERY after the order confirmation or its execution by the latter.
ARTICLE 3 - DELIVERY AND OWNERSHIP
3.1. The delivery times are only approximate and by way of information and are therefore not binding, unless otherwise stipulated in writing. A delay in the delivery and/or execution can in no case give rise to any fine, penalty payment, compensation, dissolution of any agreement or liability on the part of FUSED MACHINERY. Partial deliveries are allowed and a late or partial delivery cannot be a ground for refusal of the goods and/or non-payment by the Buyer.
3.2. FUSED MACHINERY has the right to suspend the execution in case of total or partial default of payment on the due dates according to the terms of payment. The Buyer must ensure that deliveries can take place on the (approximate) delivery date. If delivery is not possible on that date at the delivery address belonging to the Buyer, the Buyer must provide an alternative delivery address to FUSED MACHINERY. If receipt is refused by the Buyer, the goods will be stored at the expense and risk of the Buyer. All additional costs will always be at the Buyer's expense. The risk due to loss, theft or damage, among others, will be transferred to the Buyer at the moment of delivery.
3.3. Goods are sold and delivered in the condition in which they are at the time of inspection prior to collection/dismantling by the original owner and/or supplier and/or manufacturer and/or the third party from whom FUSED MACHINERY acquired the goods. The Buyer declares to have had the opportunity to thoroughly inspect the goods beforehand and to be assisted by experts of his choice as far as he deems necessary. In case of complaints, all complaints about the delivered goods must be communicated to FUSED MACHINERY at the latest at the time of such inspection (or opportunity thereto). Complaints are in no case a valid reason for not paying any invoices in time. In the absence of a timely complaint, the Buyer will be considered to have accepted the delivered goods in the condition in which they were found at the time of inspection (or opportunity thereto).
3.4. FUSED MACHINERY is entitled to use the services of third parties in the execution of an order at its own discretion. Any additional services such as assembly and (re)installation at the Buyer’s premises (or elsewhere at the Buyer’s request) are considered to be done directly for account of the Buyer. Even when such services are ordered, coordinated or invoiced by FUSED MACHINERY, this is considered to be done in the name and on behalf of the Buyer. In any case, FUSED MACHINERY will not be liable towards the Buyer for such performances.
3.5. All goods delivered or to be delivered remain the exclusive property of FUSED MACHINERY until full payment of the purchase price by the Buyer, increased by any costs and/or interests, even if these goods were modified or incorporated. Goods are delivered EXW (Incoterms 2020), unless otherwise agreed in writing.
ARTICLE 4 - PRICE AND PAYMENT
4.1. All prices are exclusive of VAT, taxes, levies and customs duties.
4.2. Unless otherwise expressly agreed in writing, 30% of the price shall be payable immediately upon confirmation of the sale and the balance of 70% of the price shall be payable no later than 5 days before the commencement of dismantling and loading for transport of the purchased item. In the event of dispute, the invoice must be protested in a substantiated manner by registered letter within 8 working days of its sending.
4.3. In the event of non-payment or late payment, the outstanding invoice amount will be increased, ipso jure and without any prior notice of default being required, by a fixed compensation of 10% of the invoice amount due. In addition, interest on arrears shall be due, ipso jure and without any prior notice of default, and shall be calculated in accordance with the Act of 2 August 2002 on late payments in commercial transactions. In the event of late payment, all invoices shall become immediately due and payable.
ARTICLE 5 - LIABILITY
5.1. Except in the case of fraud or intent, the total liability of FUSED MACHINERY per order is limited to a maximum of the amount paid by the Buyer to FUSED MACHINERY in relation to the order that gave rise to FUSED MACHINERY's liability.
5.2. FUSED MACHINERY acts as an intermediary in the sale of various machines and therefore does not have the capacity of a specialised seller of the goods in question so that it is never liable for any hidden defects. Its liability is in any case, and notwithstanding the possibility of the Buyer to inspect the goods prior to delivery and his obligation to issue any complaints at the latest at the occasion of such inspection, limited to any direct damage to the goods which is understood as the material damage as well as the defective or non-functioning of the goods. FUSED MACHINERY shall not be liable for indirect damages and/or consequential damages, which shall be understood to mean but not limited to loss of income and/or profit, loss of reputation or loss of Buyer, breach of contract or loss of ability to contract etc. even if FUSED MACHINERY knew or should have known that such damage or loss might occur.
5.3. FUSED MACHINERY is not liable when non-performance or delays in the performance of any order are due to illness, accident, temporary disability or force majeure. Force majeure is understood to be any circumstance independent of FUSED MACHINERY that reasonably prevents the normal fulfilment of its obligations. In case FUSED MACHINERY also depends on third parties to fulfil its obligations, these provisions will also be applicable in case of force majeure of this third party when the fulfilment of the obligations of FUSED MACHINERY would be delayed or prevented by this. FUSED MACHINERY will inform the Buyer of such circumstance within a reasonable period of time. Furthermore, FUSED MACHINERY is not liable when any delay is due to late delivery by third parties including but not limited to the carriers, nor is FUSED MACHINERY liable for the loss by third parties including but not limited to the carriers.
5.4. For the commercial information provided by FUSED MACHINERY regarding the goods it offers, FUSED MACHINERY is only liable in case of gross error or intentional error.
ARTICLE 6 - WARRANTY
For goods supplied by FUSED MACHINERY which originate from third parties, the warranty is limited to the warranty provided by its manufacturer or supplier, if applicable, without any warranty period longer than one year being ever applicable. Even in that case, the warranty is limited to the repair or replacement of the product. The warranty will in any case expire in case of (i) improper or abnormal use, as well as non-compliance with the conditions of use, (ii) causes not inherent to the product and (iii) intervention of third parties. For any services performed by FUSED MACHINERY, the warranty period is limited to 3 months. T
ARTICLE 7 - INTELLECTUAL PROPERTY RIGHTS
FUSED MACHINERY does not grant any transfer of intellectual property rights or licence nor can any act or omission of FUSED MACHINERY be deemed to imply an impairment of any intellectual rights. All intellectual property rights on work or resulting from work performed by or on behalf of FUSED MACHINERY, if performed, and any subsequent modifications thereof are vested solely in FUSED MACHINERY.
ARTICLE 8 - TERMINATION
8.1. Any agreement may be terminated without judicial intervention in the following circumstances: (i) In the event of a breach by a party of any of its obligations under this agreement and if no satisfaction has been given within thirty days of being served with a notice of default by registered letter, the other party may terminate the agreement by sending a second registered letter; (ii) In the event of bankruptcy, insolvency, liquidation or voluntary dissolution of the Buyer or FUSED MACHINERY, the other party may terminate the agreement by written notice. In case of termination or cancellation by the Buyer for whichever other reason, FUSED MACHINERY will in any case be entitled to a lump sum compensation of 70% of the offer price, notwithstanding the right of FUSED MACHINERY to prove its actually sustained damage and to claim compensation thereof from the Buyer.
ARTICLE 9 - APPLICABLE LAW AND JURISDICTION
9.1. All disputes concerning the conclusion, interpretation, execution and/or termination of the agreements between the parties and the present terms and conditions of sale shall be settled in accordance with Belgian law, to the exclusion of the 1980 Vienna Sales Convention.
9.2. In case of dispute, only the courts of the place of the registered office of FUSED MACHINERY are competent.
9.3. Any claim against FUSED MACHINERY will be time-barred and therefore inadmissible unless court proceedings on the merits to obtain compensation for such claim were brought against FUSED MACHINERY within one year after the Delivery.
GENERAL PURCHASING CONDITIONS – FUSED MACHINERY
ARTICLE 1 - APPLICABILITY OF THE CONDITIONS
1.1. Unless otherwise expressly agreed in writing, only these General Conditions of Purchase ("GPC") apply to the purchase of goods and/or services (together “Goods”, also an "Order") from a supplier ("Seller") by an entity directly or indirectly controlled by FUSED MACHINERY, trade name of DSF CONSULTING BV, CBE nr. 0665.909.750, with registered office at 3500 Hasselt, Arnold van Loonlaan 26 (“FUSED MACHINERY”). These GPC are an integral part of the legal relationship of the purchase of goods and/or services by FUSED MACHINERY from the Seller and only these terms are binding on FUSED MACHINERY. If any provision of these GPC is invalid for any reason, the remaining terms and conditions shall not be affected.
1.2. The present general terms and conditions take precedence over all general terms and conditions of the Seller and, if applicable, of third parties and/or subcontractors also acting within the aforementioned legal relationships.
ARTICLE 2 - ORDER, PRICE AND PAYMENT
2.1. Unless expressly agreed otherwise in writing, all prices in the Order are fixed and not subject to revision. They include all taxes (other than VAT or equivalent), contributions, insurance and all other costs incurred by the Seller in the execution of the Order up to and including Delivery, all materials, documents, accessories, devices and/or tools required for the full and functional use and maintenance of the goods and are inclusive of all fees for the use of all intellectual property rights, including those of third parties.
2.2. With each Delivery, the Seller shall issue a commercial invoice to FUSED MACHINERY. No invoice may relate to more than one Order. Amounts due under any invoice issued by the Seller shall be paid within the period specified in the Order if the Goods have been delivered by that period. FUSED MACHINERY may set off any costs incurred by it as a result of the Seller's default against any outstanding invoices or may withhold payment if the Seller fails to comply in full with its obligations under the Order. The absence of protest or rejection of an invoice does not imply FUSED MACHINERY's acceptance of the invoice. Payment of an invoice does not in itself imply FUSED MACHINERY's acceptance that the Goods conform to the Order.
ARTICLE 3 - DELIVERY AND INSPECTION
3.1. Unless otherwise agreed, the Goods shall be delivered EXW Incoterms 2010 at the delivery point specified by FUSED MACHINERY in the Order ("Delivery"). The transfer of risk and ownership of each delivery of Goods shall pass from the Seller to FUSED MACHINERY when the Goods are delivered in accordance with the foregoing Delivery Terms. The Seller warrants that at the time of Delivery it will have title to the Goods and that it will deliver them free from all liens, rights of retention, claims and encumbrances.
3.2. Prior to Delivery, the Seller shall inspect the Goods for conformance with the specifications, quality, weight and physical dimensions set forth in the Order, as well as for any damage to the Goods. Accordingly, the Seller shall expressly notify FUSED MACHINERY of any known defects (if any) to the Goods. At the time of sale and Delivery, the Goods may not be defective except for the defects already expressly communicated by the Seller to FUSED MACHINERY and accepted by the latter. The Seller shall deliver the Goods by all appropriate means and using appropriate equipment and accessories, including the original lifting equipment, and this exclusively with the assistance of competent and solvent agents or subcontractors, if required.
3.3. If the Order is not fulfilled within the period specified in the Order, or any other document referred to in the Order, FUSED MACHINERY may, after notifying the Seller of the delay, either cancel the Order within 60 days of the agreed delivery date and claim damages from the Seller, or accept the Delivery. FUSED MACHINERY may refuse partial or early Deliveries, and in such case it may (i) return the Goods; or (ii) store them, at the Seller's cost and risk. If requested by FUSED MACHINERY, the Seller shall remove all packing material from FUSED MACHINERY's or their client’s premises after the Delivery. The Seller shall immediately inform FUSED MACHINERY in writing of all details of any possible or actual delay in Delivery and of the Seller's remediation plan.
3.4. Prior to Delivery, FUSED MACHINERY may check the progress and proper performance of the Order and inspect the Goods at the Seller's or its suppliers’ and/or subcontractors' premises or elsewhere during normal working hours and upon reasonable notice. The Seller shall provide reasonable access to its premises for such inspections to FUSED MACHINERY and/or their clients and their representatives, and shall ensure that its subcontractors provide reasonable access to its premises for FUSED MACHINERY and/or their clients and their representatives. FUSED MACHINERY shall inform the Seller of any defects in the Goods and it may reject the defective Goods within 30 days of Delivery and request the Seller to collect them at its expense and risk.
3.5. Not later than the date of Delivery, the Seller shall deliver to FUSED MACHINERY all technical documentation relating to the goods – including, at the least though without being exhaustive, the technical specifications, maintenance history and serial number – and any other supporting documentation normally supplied with the Goods or reasonably requested by FUSED MACHINERY. Such technical documentation shall be the property of FUSED MACHINERY and shall be considered an integral part of the Goods.
ARTICLE 4 – WARRANTY, LIABILITY AND INDEMNIFICATION
4.1. The Seller warrants that the Goods: (a) conform to the agreed specifications and requirements; (b) are fit for the purpose(s) as are usually expected form such Goods or as made known to Seller; (c) are free from defects in design, materials and workmanship, and from any rights of third parties as meant in art. 5.1 of these conditions; and (d) comply with all applicable legal requirements and standards. If Goods are not in conformity with this Section, FUSED MACHINERY may (a) reject them and require the Seller to repair them or provide replacement Goods, at the Seller's expense; (b) terminate the Order in accordance with the provisions of Section 8 (Termination), if the Seller fails to provide replacement or repaired Goods within a reasonable time; (c) accept the Goods with an equitable reduction in price.
4.2. The Seller shall remove rejected Goods from FUSED MACHINERY's or its client’s premises not later than 30 days after their rejection, at the Seller's risk and expense. If the Seller fails to deliver replacement or repaired Goods within a reasonable time, FUSED MACHINERY may replace or repair the Goods at the Seller's expense. All repaired or replaced Goods shall be subject to the provisions of this Section 4 and the warranty period (which shall never be shorter than one year – neither for original, nor for replacement Goods) shall apply to such Goods from the date of Delivery or repair.
4.3. The Seller is liable towards FUSED MACHINERY for any damage resulting from the non-conformity of the Goods with the stipulations of this Section 4, regardless whether or not such damage was foreseeable for the Seller, or whether such damage was a direct or indirect consequence from any non-conform delivery. The Seller shall be responsible for any defects or other deficiencies that do not meet the requirements of the Order, regardless of any inspection, approval or acceptance of Goods.
4.4. The Seller shall, at FUSED MACHINERY’s first written request, hold FUSED MACHINERY integrally harmless for any claim (including any claims, damages, losses or expenses) of any third parties raised against FUSED MACHINERY regarding an Order, Goods or a Delivery, and will, at FUSED MACHINERY’s first request, voluntarily participate in any legal proceedings that are initiated against FUSED MACHINERY regarding any Order, Goods or a Delivery and defend FUSED MACHINERY against all such claims.
4.5. The Seller shall be liable to FUSED MACHINERY and/or to FUSED MACHINERY’s clients/buyer for all defects and/or damage arising between the time of inspection as meant in art. 3.4 of these conditions and the time of Delivery, whether or not such defects and/or damage were foreseeable to the Seller.
ARTICLE 5 - THIRD PARTY RIGHTS
5.1. The Seller declares having full ownership of the Goods at the time of the Delivery. He declares that the Goods are not encumbered by any attachment or with any rights in favor of third parties, including, but not limited to, any privilege, pledge, lien, retention of title or any other security.
5.2. The Seller warrants that neither the Goods nor their sale infringe on the rights of third parties. If the Goods become the subject of claims for infringement of third party rights, the Seller shall, after consultation with FUSED MACHINERY, either obtain the right for FUSED MACHINERY to use the Goods or modify or replace the Goods to eliminate the infringement, without prejudice to the conformity of the Goods with the Order.
ARTICLE 6 - INSURANCE
The Seller shall subscribe to and keep in force all insurance policies necessary to cover its liability under the Order. At the first request of FUSED MACHINERY, the Seller shall provide FUSED MACHINERY with evidence of such insurance.
ARTICLE 7 - FORCE MAJEURE
Neither Party shall be liable for any delay or failure in the performance, in whole or in part, of the Order to the extent that its performance is prevented, delayed or impeded by any event beyond its reasonable control, which could not reasonably be foreseen at the date of the Order, nor reasonably avoided.
ARTICLE 8 - TERMINATION AND TRANSFER
8.1. FUSED MACHINERY may suspend performance of the Order for a period of time determined by FUSED MACHINERY, or terminate the Order in whole or in part, due to any reason inherent to the business activity or operations of FUSED MACHINERY, by giving the Seller 14 days prior written notice. In such cases, FUSED MACHINERY shall pay all proven reasonable direct costs properly incurred by the Seller up to the time of suspension or termination. FUSED MACHINERY will in any case be entitled to cancel any Order at any time, without being due any compensation to the Seller, when FUSED MACHINERY’s own buyer would cancel its own order or contract with FUSED MACHINERY for whichever reason.
8.2. If a party violates any provision of the Order, the other party may terminate the Order with immediate effect without any further liability or obligation and recover from the violating party all direct costs associated with the termination, including the recovery of amounts paid pursuant to the Order.
8.3. Neither party may assign or transfer its rights and/or obligations under the Order (including the right to receive payment) without the prior express written consent of the other party. Such consent shall not be unreasonably withheld or delayed.
ARTICLE 9 - SUBCONTRACTING
The Seller may not subcontract any part of its obligations to third parties without the prior written consent of FUSED MACHINERY. This authorization cannot be unreasonably refused or delayed. Any subcontracting shall be done solely at the expense and risk of the Seller. The Seller shall be liable for the acts and omissions of its subcontractors and shall indemnify FUSED MACHINERY against any loss or damage suffered by FUSED MACHINERY as a result of any act or omission of its subcontractors.
ARTICLE 10 - APPLICABLE LAW AND JURISDICTION
10.1. All disputes relating to the conclusion, interpretation, execution and/or termination of the Order and the present terms and conditions of sale shall be settled in accordance with Belgian law, to the exclusion of the 1980 Vienna Sales Convention.
10.2. In case of dispute, only the courts of the place of the registered office of FUSED MACHINERY are competent.