GENERAL TERMS AND CONDITIONS
Nobscot BV, with registered office at 8780 Oostrozebeke, Stationsstraat 127, registered in the Crossroads Bank of Enterprises under the number 0837.463.158, RLP Ghent, subsection Kortrijk, ("Nobscot"), specialises in providing services in the area of savings campaigns and the distribution/sale of cookware of various brands, including "Beka". Unless otherwise agreed by the parties, these General Terms and Conditions shall apply to any offer, quotation and order confirmation of, and any agreement between, Nobscot with respect to/and its Customer ("Customer").
By placing an order, the Customer agrees to the content and applicability of these general terms and conditions and the language in which they are drawn up, acknowledges having read them, and expressly waives the application of its own general terms and conditions.
In the event of any conflict between (and any provision of) these terms and conditions and (any provision in) a written agreement concluded between Nobscot and the Customer, this written agreement shall prevail.
2. Price lists, quotations, orders and establishment of agreements
All offers and price lists of Nobscot shall be without obligation and shall not be binding as such. Nor shall orders from the Customer be binding on Nobscot. An agreement shall only be established between Nobscot and the Customer by the signing of an order confirmation or any other written agreement by an authorised representative of Nobscot. Intermediaries, representatives, appointees, vendors, operatives and employees of Nobscot are not authorised to legally bind Nobscot.
The cancellation of a confirmed order is only possible within three (3) days after receipt of the signed order confirmation or any other written agreement. The Customer cannot invoke Article 1794 of the former Civil Code. In the event of cancellation, Nobscot shall always be entitled by operation of law and without prior notice of default to fixed compensation of fifteen per cent (15%) of the price of the order, without prejudice to Nobscot's right to demand higher compensation if the damage actually suffered is higher. If the order has already been produced and/or it concerns goods that have been custom-made for the Customer, Nobscot shall be entitled to fixed compensation of seventy percent (70%) of the price of the order, without prejudice to Nobscot's right to claim higher compensation if the damage actually suffered is higher.
3. In the event of distribution/sale of Beka cookware
Nobscot is contractually prohibited from actively selling Beka cookware outside of Belgium and Luxembourg. In view of this, in particular to ensure compliance in good faith with the above-mentioned prohibition, the Customer is not permitted, and the Customer accordingly undertakes to refrain from, actively selling Beka cookware outside Belgium and Luxembourg, directly or indirectly. If the Customer violates this article, it shall be liable by operation of law and without prior notice of default to pay fixed compensation of five thousand euros (5,000 EUR) per infringement, without prejudice to Nobscot's right to claim higher compensation if the damage actually suffered is higher. The Customer also agrees to promptly report to Nobscot any violation of this article and to take all necessary steps to bring to an end such violation. Finally, the Customer undertakes to indemnify and hold Nobscot harmless in any proceedings that are (partly) caused by this infringement.
4. Performance and delivery
Unless otherwise agreed by the parties, the communicated (performance and/or delivery) times, even in an order confirmation, are always indicative and given in good faith, but are not binding. Any late delivery shall not entitle the Customer to any compensation or cancellation of the order.
4.2. In the event of distribution/sale of goods
Deliveries of goods may be in several instalments, and this cannot give rise to complaints. Unless otherwise agreed by the parties, delivery shall take place Ex Works (in accordance with the latest version of the Incoterms as drawn up by the ICC) at Nobscot's registered office.
5. Price and payment
Unless otherwise agreed by the parties, orders shall be invoiced at the prices and conditions set out in the order confirmation or communicated price list(s) by Nobscot. Unless otherwise agreed by the parties, the prices are always quoted exclusive of taxes, duties, taxes and/or levies, and if the value of the goods (to be) delivered is less than two hundred and fifty euros (250 EUR), exclusive of delivery costs.
Nobscot expressly reserves the right to change the agreed prices, even after the date of the order confirmation, if there is a valid reason for doing so, in particular when this is the result of a change in external factors, including, but not limited to, a price increase in one or more elements of the production or logistic chain and/or in the event of a price increase in the (raw) materials required for the goods, subject to prior notification to the Customer.
Unless otherwise agreed by the parties, all invoices shall be payable into the bank account notified by Nobscot within thirty (30) days of the invoice date. The Customer must notify Nobscot of any objection regarding an invoice, under penalty of forfeiture, by registered mail, within ten (10) days of the invoice date. Full reasons for the objection must be given. Any objection, of whatever nature, shall not suspend the Customer's payment obligations.
On any amount unpaid by the due date, the Customer shall always be liable to pay, by operation of law and without prior notice of default, default interest equal to twelve percent (12%) (per annum). In such cases, the Customer shall, by operation of law and without prior notice of default, be liable to pay fixed compensation equal to twelve per cent (12%) of the outstanding (total) amount (including duties, excise duties, taxes and/or levies) with a minimum of one hundred euros (100 EUR) per invoice, even if a grace period has been granted, without prejudice to Nobscot's right to claim higher compensation if the actual damage it has suffered is higher.
In the event of non-payment of an invoice by the due date, any possible postponement of payment granted by Nobscot shall be forfeited, and all other claims from Nobscot not yet due against the Customer shall automatically and without prior notice fall due. If the Customer fails to comply with its obligations, including the payment of the goods, Nobscot expressly reserves the right to suspend the execution/production/delivery of all current orders by operation of law and without prior notice of default or to terminate the agreement without entitlement to compensation on the part of the Customer, however, without prejudice to (any) other rights to which Nobscot is entitled, including the right to compensation on the part of the Customer.
The setting off of debts is expressly ruled out by the Customer. Nobscot is entitled to offset all claims against the Customer or companies affiliated with the Customer against any debts outstanding on its behalf, of whatever nature and whether such debts are certain, due or fixed. The current provision and this possibility are also valid and enforceable in the event of insolvency, dissolution, judicial reorganisation or bankruptcy on the part of the Customer.
If at any moment Nobscot has doubts as to the creditworthiness of the Customer, inter alia due to acts of (judicial) enforcement on the part of the Customer, the failure to pay one or more invoices or to pay them on time, in the event of judicial reorganisation and/or any other demonstrable events that (may) affect Nobscot's trust in the proper fulfilment of the obligations assumed by the Customer, Nobscot expressly reserves the right to suspend deliveries, to demand advance payment from the Customer for deliveries still to be carried out and/or to demand (other) securities or guarantees, even if the goods have already been shipped in whole or in part. If the Customer refuses to make an advance payment and/or to provide other surety requested by the Customer, Nobscot shall have the right, without prior notice of default, to terminate the agreement with the Customer without judicial intervention and without being liable for compensation.
In such cases, the Customer shall always be liable to fixed compensation by operation of law and without prior notice of default of fifteen (15%) of the price of the order, without prejudice to Nobscot's right to claim higher compensation if the damage actually suffered is higher.
6. Transfer of ownership and risk.
If goods are sold, the delivered goods shall remain the property of Nobscot until full payment by the Customer of the amounts due, on any account whatsoever. As long as they have not been paid in full, the Customer cannot resell them or use them as security. Any action in breach of this article shall not be enforceable against Nobscot.
If the Customer does not pay for the delivered goods on time and in the correct manner, Nobscot shall be entitled to demand the return of all goods (and if applicable, to demand an inventory thereof in advance) immediately without judicial intervention and without further notice of default. The Customer shall make these goods available at Nobscot's registered office upon first request, failing which the Customer shall grant Nobscot the right to enter the (storage) area(s) where the goods are located.
If the Customer wishes to store the goods with a third party, the Customer shall in any event inform Nobscot thereof in advance. This notification must include the identity and address of the third party.
All costs incurred for the recovery of the goods as well as the related costs shall be paid by the Customer.
7. Defects and returns/remedies
In the case of distribution/sale of goods, the Customer or person acting on its behalf shall verify the nature, quantity and good condition of the goods upon delivery. The Customer must report all complaints relating to visible defects and/or non-conformities, under penalty of forfeiture, with reference to the invoice number or the shipping note, to Nobscot by registered letter, no later than five (5) days after delivery of the goods, but in any event before the use, processing, or (re)sale thereof. This notification must include photographs that provide unmistakable evidence of the visible defects and/or non-conformity. In addition, the Customer must (subsequently) make all claims on account of visible defects and/or non-conformities, under penalty of forfeiture, within one (1) month of delivery. If the Customer uses, processes or (re)sells the goods, they shall forfeit the right to report a complaint on account of visible defects and/or a non-conformity. If the Customer does not report the visible defects and/or non-conformity (in time), it shall be deemed to have accepted the goods.
The Customer must notify all complaints relating to hidden defects, under penalty of forfeiture, to Nobscot by registered letter within one (1) month after identification thereof, and in any event no later than one (1) month after delivery. This notification must contain a detailed description of the hidden defects. In addition, the Customer must (subsequently) make all claims on account of hidden defects within one (1) year of delivery.
Nobscot shall in no event be liable for hidden defects that are the result of force majeure, an error or negligence on the part of the Customer or person for whom the Customer is responsible and/or normal wear and tear.
In the event of a complaint in accordance with this article, Nobscot (at its discretion) shall only be obliged to replace or repair the defective and/or non-conforming product. Returns are only possible with the consent of Nobscot, and to the extent that the goods are in good condition and in their original packaging. Consent in this regard is not an admission of liability on the part of Nobscot.
Any complaint of whatever nature does not suspend payment obligations and does not entitle the Customer to refuse delivery for goods that are not the subject of the complaint.
Nobscot expressly reserves the right to suspend its obligations under this Article until full payment by the Customer of amounts due, on any basis whatsoever.
Nobscot shall, except in the case of gross negligence, intent or deceit, not be liable for, and Nobscot shall not be obliged to pay compensation to the Customer for, any form of immaterial, indirect or consequential damage, including but not limited to loss of profit, loss of turnover, loss of revenue, loss of production or production stoppage, administration or staff costs, an increase in overheads, lost opportunities, loss of clientele or any claims by third parties (including the Customer's customers).
Nobscot's total liability per damage incident shall, except in the case of gross negligence, intent or deceit, be limited to the invoice amount of the relevant order, or at least to that portion of the order to which the liability pertains.
The Customer shall solely and exclusively bear all risks related to the use of the goods or services.
9. Force majeure
In the event of force majeure on the part of Nobscot, the obligations of Nobscot vis-à-vis the Customer shall be suspended for as long as the force majeure persists.
Force majeure refers to (i) the (foreseeable or unforeseeable) circumstances as a result of which the performance of the contract is made more difficult in whole or in part, temporarily or otherwise, or (ii) the following cases: war, terrorism, terrorist threats, riots, civil commotion, quarantine, general or partial strikes, lock-out, fire, operating accidents, machine breakdowns, lack of means of transport, shortage of materials and/or raw materials, frost, epidemics, government decisions or interventions, fuel shortages, force majeure affecting a supplier or subcontractors, energy shortages, errors or delays attributable to third parties.
If the situation of force majeure lasts longer than two (2) months, Nobscot has the right to dissolve the agreement without judicial intervention and without being liable to pay damages. In the event of force majeure, Nobscot may, at its sole discretion, exercise judgment and discretion with regard to the allocation and distribution of the available goods to its customers whereby the Customer shall not be entitled to any compensation on the part of Nobscot in such situations, nor shall it be entitled to terminate the agreement for that reason.
Nobscot is entitled to terminate the agreement with the Customer at any time, with immediate effect, without prior notice of default and without being liable to any compensation in the following cases: (i) if the Customer, notwithstanding a written notice of default observing a term of at least seven (7) calendar days, fails to (timely) comply with one or more obligations under the agreement, (ii) in the event of cessation of payments or (the application for or the summons to) a judicial reorganisation and/or bankruptcy of the Customer (iii) (the decision or summons to) dissolve and/or liquidate the Customer, (iv) discontinuation of all or part of the activities of the Customer, (v) attachment (either protective or enforcing) of all or part of the assets of the Customer, (vi) an attributable serious shortcoming on the part of the Customer that renders any professional cooperation between Nobscot and the Customer immediately and permanently impossible, and/or (vii) if the Customer actively sells Beka cookware outside of Belgium and Luxembourg in violation of Article 3, either directly or indirectly.
In such cases, the Customer shall always be liable to fixed compensation by operation of law and without prior notice of default of fifteen (15%) of the price of the order, without prejudice to Nobscot's right to claim higher compensation if the damage actually suffered is higher. As the case may be, all claims of Nobscot against the Customer shall also become immediately due and payable by operation of law and without prior notice of default.
11. Intellectual property
All intellectual property rights relating to the goods and services provided remain with Nobscot and are not transferred or licensed to the Customer.
If one (whole or part) or more provisions of these General Terms and Conditions should be found to be invalid or unenforceable, this will not affect the validity or enforceability of the other provisions or of that part of the provision in question which is not invalid or unenforceable. In such cases, Nobscot and the Customer shall negotiate in good faith with a view to replacing the conflicting or unenforceable provision with a legally valid and enforceable provision which comes as close as possible to the purpose and spirit of the original provision.
13. Applicable law and competent jurisdiction
For all disputes relating to an offer, quotation and order confirmation from, and agreement between, Nobscot of/and the Customer, the courts of the judicial district of West Flanders, subsection Kortrijk, shall have exclusive jurisdiction, and Belgian law, to the exclusion of the United Nations Convention of 11 April 1980 on Contracts for the International Sale of Goods and the Convention of 14 June 1974 on the Limitation Period in the International Sale of Goods, shall exclusively apply.