These general terms shall be applicable to any and all offers, confirmations of order, agreements with third parties and transactions of BVBA Kozmoz Design & Display (hereinafter “Kozmoz”). By accepting an offer and by placing an order, the buyer shall accept explicitly these general terms, unless different arrangements shall be agreed in writing. The buyer recognizes having waived possibly existing terms of his own.
Subject to an explicit clause to the contrary, the offers and information shall not be binding and provided for purposes of indication only.
Orders shall become definitive from the moment of their confirmation in writing by Kozmoz. Information provided by Kozmoz, including specifications and other technical data shall be supplied according to the best knowledge of Kozmoz, but without being binding on the company.
As the goods are made to order, cancellations of orders shall not be possible. If the buyer cancels his order anyhow, the full amount of the order shall have to be paid. If the reference to the buyer covers several (legal) persons, these shall all be jointly and severally liable for complying with any and all commitments of the buyers resulting from the agreement.
Unless otherwise agreed, all prices shall be net and without VAT, import duties, other rates, levies and taxes. When he places an order, the buyer shall accept that Kozmoz has the right of increasing the price agreed after the prices for materials, wages, social security charges and similar costs have risen since the date of the agreement. Any such increase of price shall be reported to the buyer in writing and shall be binding on the buyer.
Any possible discounts shall be definitively acquired only after payment in full of the amounts payable, at the due dates scheduled. In the event of a partial or late payment, the customer shall not be entitled to any discount. Any possible specific and/or additional wishes of the buyer and changes in the order shall be complied with only after a confirmation in writing by Kozmoz. The buyer shall agree to pay the additional cost in this respect.
Unless otherwise agreed, the goods shall be delivered ex works. If otherwise agreed, the goods shall travel always at the buyers’ risk.
Times of delivery shall be provided as an approximate information only. Any delays, caused by third parties or not, shall not give rise to any claims for damages or to the total or partial cancellation of the contract or order.
Kozmoz shall always have the right to deliver 10 % more or less of the amount ordered. Kozmoz shall always have the right to effect the delivery of goods and/or services in portions and to invoice these portions separately.
If the goods can not or will not be delivered by Kozmoz at the date agreed, then the goods shall be stored by Kozmoz. The costs for handling and storage shall be entirely at the buyers’ expense and shall have to be paid prior to the release of the goods. The costs shall be determined in writing in the offer and/or confirmation of the order. Up to the moment of payment in full of he storage costs, Kozmoz shall have a right of retention, even though the price for the goods have been paid already.
The manner of transport, shipping, packaging etc. shall be determined by Kozmoz at its own discretion, if the buyer has not provided any instructions in this respect, without assuming any liability for the said action. The shipping of goods shall be effected always for the account and at the risk of the buyer.
Any possible specific wishes of he buyer regarding the transport or shipping of the goods shall be complied with only after the buyer has declared in writing that he is prepared to pay the extra cost.
If the goods are to be secured in a fixed structure of the buyer, this shall be effected under his supervision and at his risk. The buyer shall ensure that the place where the goods are assembled or installed has been cleared entirely. Kozmoz shall not be responsible for clearing or removing other goods. If extraordinary circumstances make the delivery, assembly or installation more difficult than mentioned at the time of the order, then the buyer shall hold Kozmoz harmless for any additional expenses that Kozmoz may invoice separately.
6. RESERVATION OF OWNERSHIP AND RIGHT OF RETENTION
Until payment has been made in full and all the commitments under the sales agreement have been complied with, the goods (delivered or not) shall continue to be in Kozmoz’s full ownership. Consequently, the buyer shall not be authorized to transfer the goods for the benefit of any third parties prior to the payment thereof, subject to approval in writing.
Kozmoz shall have the right to retain the buyers’ goods as well as the work materialized therewith and which the company has obtained from the buyer in the framework of a delivery of goods and/or services or otherwise, until the buyer has paid in full the amount payable to Kozmoz under any agreement, including interest and costs. In the event of non-payment of the invoice at the due date, Kozmoz may claim the dissolution of the agreement which shall be considered as dissolved after the simple notification thereof to the buyer by registered letter. Kozmoz shall reserve in this case its right of claiming corresponding damages. In the event of consignment, Kozmoz shall obviously retain the ownership of the goods.
7. INTELLECTUAL PROPERTY
Any and all intellectual property rights relating to the goods originating from Kozmoz are owned by the latter. Any and all drawings, calculations, designs, samples, models, stencils and matrices etc. are and shall be the property of Kozmoz and shall always be returned on simple request of Kozmoz.
The buyer shall not be authorized, without Kozmoz’s explicit approval, to change and/or duplicate and disclose any goods and/or notices, including the copying thereof, nor to show them to third parties or make them available to these parties.
8. FORCE MAJEURE
If the delivery is prevented or made excessively difficult by “force majeure” (act of god), then the seller shall have the right of adjusting the agreement to the circumstances, to suspend the performance thereof or to terminate the agreement. The buyer shall waive explicitly any possible claim for damages.
Unless the contrary has been disputed immediately after the delivery, the data on the documents of transport and the receipts shall be considered as corresponding with the goods actually delivered. To be acceptable, any and all other complaints must be made in writing within 8 days following the receipt of the goods, at the latest. Any possible comments shall not entitle the buyer to suspend the payment.
Each invoice shall be payable within 30 days following the date of the invoice, net in cash and without any discount, in Mechelen or via bank transfer. Drawing a bill of exchange shall not affect these terms. Any delay in payment shall result in the obligation for the customer and without any previous summons to pay a contractual interest for late payment at the rate of 12 % per annum, without prejudice to any possible claim for damages. The interest shall be calculated from month to month, with each month commenced calculated as a full month.
In the event of non-payment of the invoice at its due date, an indemnity set contractually at 12% of the outstanding invoice amount owed shall become payable of right, with a minimum set at 250 EUR. This indemnity clause is designed to cover supplementary administrative costs, debtor monitoring, non-availability of funds and similar items. The indemnity shall be payable even in the event where the principal amount alone of the overdue invoice has been paid.
Non-payment or late payment of an invoice shall cause any and all unpaid invoices of the buyer to become payable immediately. Kozmoz shall be authorized also to charge its claims with regard to the buyer against debts of Kozmoz or of an affiliate with the buyer. Kozmoz shall have the right of assigning its claims against the buyer to third parties.
Without prejudice to the other provisions under these general terms, Kozmoz shall not be liable for damage resulting from:
Without prejudice to the other provisions under these general terms, Kozmoz accepts liability only and to the extent where this liability is covered by insurance and only up to the amount of the payment made by the insurance company.
Without prejudice to the other provisions under these general terms, Kozmoz shall never be held liable for damage consisting of loss of profit, stagnation of business or other consequential effects for the buyer.
Without prejudice to the other provisions under these general terms and if the insurer fails to effect the payment for any reason, the liability of Kozmoz shall be limited, in any event, to the amount of the invoice, with a maximum amount of 12.400 EUR. The legal claim for damages or for repair by the buyer against Kozmoz under the provisions of these terms shall be forfeited after one year following the moment when the buyer had knowledge or should have had knowledge of the damage.
As regards the goods delivered or the service provided by Kozmoz, provisions of warranty shall be applicable only to the extent where they have been explicitly agreed in writing. Without prejudice to the provisions under these terms, colors shall be excluded always from the warranty. Also and without prejudice to the provisions under these terms, the warranty provided shall be always limited to 90 % of the goods received from the buyer for processing.
The plate thickness shall be considered as a nominal indication always, with a plus or minus tolerance of 10 %. As regards goods sold and delivered with factory, importer or wholesaler warranty, only the warranty provisions set by the said supplier shall be applicable. Any claims to the possible warranty shall be forfeited if the buyer has carried out or had carried out any repairs or changes relating to the goods supplied and/or the work carried out, without the approval of Kozmoz.
Any warranty for visible defects shall be excluded as from the acceptance of the goods at the time of their delivery. If the goods display material and manufacturing defects, then the buyer shall have to inform Kozmoz thereof by registered letter, on the penalty of forfeiture, within a period of 8 days after the defect has been discovered. Kozmoz undertakes to repair or replace the goods, at its own discretion, on condition that its responsibility for the material or manufacturing defect has been proved. Kozmoz shall not be liable for damages under any circumstances. Kozmoz rejects any responsibility for damage resulting from any inappropriate use of the goods, for any damage cause to third parties and for any indirect damage caused by the use of the goods delivered.
Any claims for possible warranties shall be suspended for as long as the buyer has not complied with his obligations of payment. The buyer shall not have the right of retaining payment in part or entirely with the argument that Kozmoz has failed to comply with its warranty obligation as yet or in full.
Unless Kozmoz has approved in advance and in writing, the buyer shall not make available any information and data supports provided to him by Kozmoz to any third parties and he shall disclose such information to his personnel members only, and to the extent where this is necessary, where third parties have to provide services as agreed. The buyer shall commit his personnel members to observe this secrecy clause.
Any and all disputes in connection with the agreement concluded shall be governed by the laws of Belgium. The Courts of Brussels alone shall have jurisdiction and, as the case may be, the Justice of the Peace in Mechelen, where any such disputes are concerned. The seller alone may act contrary to this stipulation.