Scope of application
The following terms and conditions (hereafter the « Terms and Conditions ») apply to sales contracts of tangible goods and contracts for services), and to any contracts that cover a combination of sales and services. The Terms and Conditions govern the relationship between the Seller and the contracting party (hereafter the “Customer”). The Seller is Northstone SPRL with statutory seat at Belgium, 1030 Schaerbeek, Rue des Coteaux 256 (box 8), or any of this company’s subsidiaries (hereafter referred to as the “Seller”).
OneBonsai is a subsidiary of NorthStone SPRL.
These General Conditions always prevail over any of the Customer’s general conditions regardless of whether there are any other stipulations or conditions in the Customer’s order form or any of its documents that may be contrary to these General Conditions. The General Conditions may not be amended tacitly. Any conduct that is contrary to what is contained in the Terms and Conditions shall not operate as a waiver of these General Conditions.
Acceptance and Effect
Only the Seller’s firm offer, which has been accepted unconditionally within the offer’s validity period, shall be binding upon the Seller.
In all other instances, there shall be a valid contract only if there is a Confirmation of the order, i.e. a written acceptance by the Seller of the Customer’s order. The Seller may decline any order in whole or in part, for any lawful reason whatsoever. Each order shall be deemed to be an offer by the Customer to purchase Goods and/or Services subject to these Terms and Conditions.
If the Customer does not agree with the terms contained in the Confirmation, he must inform the Seller immediately and, in any event, no later than eight (8) calendar days from the date of the Confirmation’s sending. Failing which, the Customer is deemed to have accepted the conditions contained in the Confirmation.
Acceptance by the Seller of an order sent by Customer shall not be deemed an acceptance of any conflicting or additional terms and conditions. Specific terms and conditions, which deviate from these Terms and Conditions, shall only apply insofar as those are mutually agreed in writing by the Seller and the Customer.
The contract between the Customer and the Seller (hereafter, the “Contract”) only concerns the delivery of goods and performance of services as described in the Contract (hereafter, “the Goods and/or Services”).
The Customer waives the application of Section 1794 of the Belgian Civil Code.
The Contract is made up of the following documents:
The Confirmation and – to the extent that the terms contained in the following documents do not depart from those of the Confirmation – the Seller’s Offer, the Customer’s Order, and any subsequent changes to those documents;
Where applicable, the Seller’s technical descriptions;
The Terms and Conditions.
The price for the Goods and the Services will be the price indicated in the Confirmation.
The price referred to on any document issued by the Seller (offer, Confirmation, invoice, etc…) always excludes VAT and does not include taxes and duties that are directly levied on Goods and/or Services. Unless otherwise stipulated, the price does not include the cost of transportation, delivery, or collection of the Goods. All taxes, charges, duties, and costs shall be borne by the Customer.
An exceptional increase in the prices of materials, fuels or in the prices that subcontractors and supplies have charged to the Seller entitles the Seller to revise its own prices to the corresponding amounts.
The Seller can request the Customer to make an advance payment and/or give a security interest that is adequate for guaranteeing the full payment of the price. Failing to pay this advance or granting this security interest entitles the Seller to suspend the performance of its obligations without prior or formal notice, and any deadlines imposed on the Seller will be automatically suspended. If the Customer’s default persists, the Seller may unilaterally terminate the contract and claim damages.
Despite any protest made in accordance with these Terms and Conditions, all invoices must be paid within fifteen (15) calendar days after they have been issued. An invoice is considered received three (3) business days after its sending date if sent by regular mail. An invoice sent online is considered received on the same day.
By default invoices are sent electronically, but may be sent by regular mail at Customer’s request.
Amounts overdue shall attract an additional interest charge, as of the due date, at the interest rate set forth in section 5 of the Belgian Law of 2 August 2002, and this without prior notice and without prejudice to any claim for additional damages or damages for collection costs.
Any protest of an invoice must be notified by registered letter within fifteen (15) calendar days from the invoice issue date. In the absence of protest within that period, the invoice shall be deemed accepted by the Customer.
If the Seller has reasonable grounds to believe that the Customer will fail to comply with the applicable payment terms, the Seller shall be entitled to postpone or to refuse delivery of an order.
Deliveries shall be made Free Carrier (FCA Incoterms 2010) at the Seller’s premises. All rights to the Goods and the risk of loss, damage or accidental destruction shall devolve upon the Customer from the moment the Seller hands over the Goods into the charge of the carrier designated by the Customer.
Unless otherwise agreed in writing, the Customer is responsible for all freight and shipping costs, as well as any applicable insurance premiums for shipment of the Goods, subject to written explicit approval by the Seller.
Unless otherwise instructed by the Customer, the Seller may itself determine the carrier, shipping method, and transport route. Seller shall be deemed to be acting for and on behalf of the Customer exclusively and not as a freight forwarding agent. Any information concerning transportation costs shall be provided for information purposes only and shall not be guaranteed. Any increase in transportation costs shall be borne by the Customer.
If the Seller undertakes to fulfil its obligations by a particular date or within a particular period of time, (hereafter the “Deadline”), the Seller shall make every effort that can be reasonably expected to meet the Deadline. Deadlines are estimates only, and shall only be binding on the Seller if the Contract expressly stipulated that they constitute essential perquisites of the Contract.
If the Seller is prevented from complying with the Deadline due to circumstances beyond its control, the Seller may extend the Deadline by an appropriate period that is equal to the duration of the circumstances that occurred.
Property – Transport
Delivered Goods and executed Services shall remain the property of the Seller until all payments have been made in full.
Unless otherwise notified in writing, risks of the Goods’ deterioration or loss due to reasons not attributable to the Seller shall pass to the Customer upon identification in the Seller’s storage facilities.
Unless otherwise stipulated, transport of the Goods shall be carried out at the Customer’s risk, responsibility, and costs, even if the Seller provides the transport.
The risks relating to the Services shall pass to the Customer gradually as the work progresses.
Intellectual Property Rights
The intellectual rights to the Goods and/or Services shall remain entirely and exclusively the property of the Seller. The Customer only obtains from the Seller the non-exclusive right to use the technical and commercial documents provided under the Contract.
Performance of the Contract
The Seller undertakes to deliver the Goods and/or execute the Services in accordance with the rules of practices and standards in force. The Seller is not under a duty to advise.
The Customer shall ensure that a person authorised to accept the Goods is present at the place, date, and time communicated by the Seller. If the Goods cannot be delivered due to reasons beyond Seller’s control, the costs of late delivery shall be borne by the Customer. Partial deliveries and performances are always allowed.
Upon a delivery of Goods and/or Services, the Customer must notify the Seller in writing of any visible defects no later than:
With respect to Goods: the seventh (7th) calendar day after delivery of the Goods;
With respect to Services: the thirtieth (30th) calendar day after the completion of the Services.
Customer’s failure to notify within the aforementioned periods shall constitute a waiver on any claim based on such visible defects.
If a visible defect attributable to the Seller is established, the Seller shall repair or replace the Goods and/or Services or credit the invoiced price, at the Seller’s discretion, with the exclusion of any payment of damages.
Quality – Hidden defects
Without prejudice to the guarantee for hidden defects subject to the conditions and limitations stated hereafter, the Seller is not bound by any warranty whatsoever.
The Seller guarantees the Customer against hidden defects relating to the Goods delivered and the Services completed. The guarantee shall expire three (3) months after the date of delivery of the Goods and/or completion of the Services unless otherwise stated in the Contract. Any claim by the Customer under this warranty must be submitted to the Seller by registered letter without undue delay and in any event no later than seven (7) calendar days after the Customer has noticed or ought to have noticed the hidden defect. The hidden defect must be confirmed by both parties. Any interference; intervention, or modification applied or carried out after discovery of the defect by the Customer, but before the defect has been confirmed by the Seller, automatically implies a waiver of the Customer’s right of recourse under this clause.
Within the aforementioned periods, the Seller agrees to replace or commercially reasonably repair defective Goods and/or Services supplied pursuant to these Terms and Conditions, except if such defects are attributable to:
Normal wear and tear;
Improper use including the failure to use the Goods and/or Services for its normal purpose or incorrect installation;
Other circumstances for which the Seller is not responsible or is not carrying the risk, such as damage caused by lightning, water, fire, acts of God, war, public disturbances, incorrect mains voltage, improper ventilation or any other cause beyond the control of the Seller.
In the event that warranty is required, the Customer shall either;
(i) forward the defective Goods to the Seller including a detailed account of the defect or provide a detailed account of the defects found in the Service provided. In this case the Seller’s obligations are limited to the repair or, at its discretion, replacement of the Goods or the defective part of the Service.; or
(ii) provide the Seller with the Goods serial number (if available), plus a detailed account of the defect, including high resolution images thereof. In this case the Seller’s obligations are limited to sending a replacement of the defective part, or, at its discretion, sending a replacement of the Goods.
Warranty repairs must be carried out by authorized partners of the Seller. No reimbursement will be made for repairs carried out by partners not authorized by the Seller.
In addition to any other remedies that Seller may have, Seller may terminate the Contract with immediate effect upon written notice to the Customer, if the Customer:
Fails to pay any amount when due under the Contract and the default is continuing for five (5) days after Customer’s receipt of written notice of non-payment;
Has not otherwise performed or complied with any obligation under these Terms and Conditions, in whole or in part;
Becomes insolvent, files a petition for bankruptcy or commences or has commenced proceedings relating to bankruptcy or reorganisation.
Without prejudice to the warranty towards hidden defects, the Seller may only be held liable for wilful misrepresentation, intentional or material breach.
If the Seller’s liability for any delay is established, actual or liquidated damages shall be limited to 5 % of the Contract’s global price.
If the Seller commits a material breach, its maximum aggregate liability for actual, direct damages shall be limited to the price of the Goods and/or Services under the Contract, and shall in no event be more than EUR 40.000.
In any event, the Seller is never liable for any special, incidental, punitive, or indirect damages such as but not limited to the loss of profit, interruption of business activities, loss of data, damage to equipment, overheads increase, or damage to third parties or third parties’ property. The Customer shall fully guarantee the Seller in any third-party claims.
The Customer shall not be allowed to claim any other kind of liability for damages or injury caused by a defective product, regardless of the degree of negligence. The Customer shall, without undue delay, notify the Seller of any damage or injury caused by a service rendered by the Seller or any risk of such damage or injury.
The Customer shall to the widest extent possible indemnify and hold harmless the Seller from any claims for damages incurring or arising as a result of a defective product.
Information communicated in the form of commercial documentation are purely descriptive and do not bind the Seller.
The Seller and the Customer shall not be liable for any loss or damage that results from a total or partial failure to fulfil any Contract owing to events that are beyond their control, such as the forced stoppage of all or parts of its tools and means of production, full or partial strikes, lockouts, wars, fire, suspension of transportation, supply problems, and in general any event that are deemed to constitute force majeure by the case law of the Belgian courts.
The Seller and the Customer shall be released from their obligations in connection with any part of the Contract upon the materialisation of such a force majeure event. They shall not bear any damages suffered in connection with such a situation.
All technical and commercial information exchanged between the Seller and the Customer before, during or after the performance of the Contract are strictly confidential and shall be treated as such by the Customer. More specifically, the Customer shall use this confidential information solely for the purpose for which it has been communicated and shall never disclose it to third parties.
Customer may not assign this Contract nor any order related thereto and Customer may not delegate its duties under this Contract without the Seller’s prior written consent.
The nullity of unenforceability of the any provision of these Terms and Conditions or of the Contract shall in no way affect the validity or enforceability of the other provisions and shall never render the legal relationship null or void. The parties agree to make every best effort to replace the invalid or unenforceable clause with a valid clause that has the same or largely the same economic impact as the invalid or unenforceable one.
Defense and prosecution of infringement
The Customer shall defend at its own expense, and hold the Seller harmless for all infringement claims that may be brought against it on account of the use, marketing or sale of the Goods covered by these Terms and Conditions.
Governing law – jurisdiction
This Contract is governed by Belgian law. Any disputes are to be submitted to the exclusive jurisdiction of the courts of Brussels (Belgium).
The Convention on the International Sale of Goods shall not apply to Contracts entered into by the Seller and governed by these Terms of Conditions.