ARTICLE 1 – SELLER
1.1. N.V. Bernaerts Tyres International, whose registered office is at 2930 Brasschaat (Belgium), Bischoppenhof 20, with VAT Nr. BE898711235 (“the Seller”), is the seller of goods (“the Goods”).
1.2. The Goods are
sold both on the premises of the Seller, situated on the address mentioned under article 1.1 (“the Premises”) and on the website www.tyres-bernaerts.com (“the Website”).
1.3. The Goods are
exclusively sold to professional Buyers-Resellers with registered offices within the European Union.
ARTICLE 2 – APPLICABILITY
2.1. The present terms and conditions (“the Terms” or “TC”) apply to all sales of Goods by the Seller.
2.2. The TC supersede
any other terms and conditions, documents or agreements between parties. Deviations from the TC are only permitted after the prior written consent of the Seller. A deviation from one provision will not
affect the validity of the remaining provisions of the TC, which shall remain in full force and effect.
2.3. By placing the
order in accordance with the provisions under article 2, the Buyer is presumed to accept the TC.
2.4. The Seller
reserves the right to unilaterally amend, replace or withdraw the TC at any time. In such event, the new TC are immediately applicable from the moment of notification to the Buyer including the Orders in
ARTICLE 3 – ORDER, CONFIRMATION & AGREEMENT
3.1. Orders may only be validly placed in writing sent by fax on fax number +32(0)3 647.18.80 or by means of the online Form on the Website. Orders
placed by phone are not binding.
3.2. Every Form sent
by fax must be signed by the Buyer. Every Form must include: the Buyer’s correct address, the ordered Goods and their quantity, date and place of delivery.
3.3. Orders are only
valid and binding to the Seller when followed by an unconditional and written confirmation (“the Confirmation”) by the Seller.
3.4. The Seller
reserves the right to suspend or cancel an Order in case of insufficient stock, incorrectly or incompletely filled out Forms, prior orders left unpaid or abnormally large orders. This list is not
3.5. Orders confirmed
by a Confirmation cannot be cancelled without prior written consent of the Seller. When an Order is cancelled by the Buyer, no refund is made.
ARTICLE 4 – PRICE
4.1. The Prices of the Goods are indicated in Euro, excl. VAT, ex-works.
4.2. The Prices are not binding and merely indicative.
4.3. The Seller
reserves the right to change or correct the Prices at any time and without prior notice. The Goods are invoiced on the basis of the Prices as indicated on the moment of delivery.
ARTICLE 5 – PAYMENT
5.1. All payments are made in cash upon delivery or pick-up, unless otherwise agreed upon. When no payment is made upon delivery or pick-up, the Seller has the right to either postpone the
delivery until full payment, or to cancel the Order.
5.2. Orders with a
value not surpassing one thousand euro (€ 1.000), excl. VAT, must be prepaid through the online payment service Ogone. When no payment is made on the date of delivery, the Seller has the right to
either postpone the delivery until full payment, or to cancel the Order.
5.3. Orders with a
value above a thousand euro (€ 1.000), excl. VAT, must be paid within thirty (30) days after the invoice date, on IBAN account number BE98 7330 5066 9493 (KBC Bank – SWIFT: KREDBEBB).
5.4. As for
international payments, the Seller reserves the right to change the methods of payment as set out in article 5.1 and 5.2.
the provisions under article 7.4, any insufficient payment on the due date of the invoice or on the date of pick-up, whichever is earlier, yields an interest of 12% per annum of the total invoiced value,
or an interest as is set out in article 5 of Act of 2 August 2002, whichever is higher, and yields a fixed indemnity of 15% of the total invoiced value, with a minimum of € 125,00, without prior
notice. An additional administration fee of € 125,00 is also charged to cover collecting costs.
ARTICLE 6 – DELIVERY
6.1. The date and place of delivery or pick-up are indicated in the Confirmation. Unless expressly agreed otherwise, the Goods are delivered with the invoice on the address
mentioned on the Form.
6.2. The terms of
delivery are not binding and merely indicative. The Seller shall make reasonable efforts to comply with the terms of delivery. Delays do not give rise to damages in favour of the Buyer.
6.3. All shipping costs are at the expense of the Buyer.
6.4. The Buyer bears
the risk from the moment of transfer of the Goods to the expeditor, transporter or person who comes to pick up the Goods. This also applies to partial deliveries.
6.5. The Seller only delivers within the European Union.
ARTICLE 7 – RETENTION OF PROPERTY
7.1. The Goods are sold under retention of property. They remain property of the Seller until full payment by the Buyer of the complete Price, along with VAT,
costs, interests and damages.
7.2. The Goods may
not be pledged, charged with securities, resold, changed, incorporated or otherwise disposed of by the Buyer, as long as the Goods are the Seller’s property. In the event that any of the Goods are
seized, executed or conserved by any third party, the Buyer immediately informs the Seller of such event.
7.3. In the event
that the Buyer resells the Goods, all claims related to such resale are hereby declared to be transferred to the Seller. The Buyer shall communicate the identity and contact details of the third party
buyers to the Seller.
the provisions under article 5.4, any insufficient payment on the due date of the invoice or on the date of pick-up, whichever is earlier, allows the Seller to unilaterally cancel the agreement without
prior notice and without any judicial recourse. The Goods shall immediately be returned to the Seller at the expense of the Buyer, without prejudice to the right of the Seller to claim damages.
ARTICLE 8 – LIABILITY
8.1. Notwithstanding the provisions under article 1641 et seq. of the Belgian Civil Code, the transaction is not guaranteed by the Seller.
non-conformity, visible defect or any other defect reasonably detectable upon first inspection of the Goods is presumed to be accepted by the Buyer in the event that the Buyer was present on the moment
of delivery. If the Buyer was absent upon delivery or if the Goods were to be unpacked by the Buyer, the latter must inform the Seller within two (2) working days by registered mail, in which the Buyer
provides the Seller with any comments the Buyer may have. The Goods are to be sent back to the Seller to allow for inspection. Inspections are only carried out after complete payment of the invoice. If
any non-conformity or visible defects as previously communicated according to the provisions under this article, are actually detected, the Seller shall replace the defective Goods with an equivalent as
soon as possible.
the provisions of imperative law or public policy concerning product liability, the liability of the Seller for any material or physical damage caused by the Goods is limited from the moment of shipment
of the Goods. The producer of the Goods bears all product liability.
8.4. The Buyer is
exclusively liable in case of any damage during shipment of the Goods. The Buyer buys insurance for the shipment and storage of the Goods. In case of failure to provide for insurance, all damages are
exclusively at the expense of the Buyer.
8.5. The liability of
the Seller is limited to any damage directly caused by the Seller’s grave faulty behaviour or grave negligence, deliberate action or breach of one of his fundamental duties for reason within the Seller’s
control. The Seller may not be held liable for any indirect damage, including but not limited to loss of revenue, fines, damage to third parties, etc. In any event, the Seller’s liability is limited to
the value of the invoice of the Goods, the damages are awarded to the free choice of the Seller by substitution of the Goods with an equivalent or by monetary damages.
ARTICLE 9 – FORCE MAJEURE
9.1. The Seller is relieved from his duties in every case of force majeure or coincidence, including in case of late deliveries by third parties to the Seller due to
force majeure or coincidence, without the possibility for the Buyer to claim any damages.
9.2. Force majeure
circumstances include, but are not limited to: fire, flooding, earthquakes, storms, hurricanes or any other natural disaster, nationalization, seizures, governmental measures, embargo’s, strikes,
lock-outs, blockades, power cuts, telephone, fax and internet interruptions, terrorist attacks, war, civil war, revolts, riots, revolutions, accidents, material breach, exceptional traffic jams,
exceptional climate circumstances or any other cause, not due to the Seller or outside his control, that renders the execution of the Seller’s duties temporarily or definitively impossible.
ARTICLE 10 – ONLINE ORDERS
10.2. The use of the
ARTICLE 11 – TRANSLATIONS
The original version of these TC is drafted in Dutch. In case of any inconsistency, dispute or challenge, the interpretation shall be done on the basis of the Dutch
ARTICLE 12 – APPLICABLE LAW & JURISDICTION
12.1. The TC, the Orders and agreements between parties are governed by and construed in accordance with Belgian law.
12.2. The Courts and
Tribunals of Antwerp (Belgium) have exclusive jurisdiction in all disputes arising out of or relating to the TC.