STANDARD TERMS AND CONDITIONS OF SALE AND SUPPLY
1 – IDENTIFICATION
PESCH MASCHINES S.A.
VAT No:0436.993.611 – Register of Legal Persons Eupen
Phone: + 32 87 56 01 76
Fax: + 32 87 56 01 77
2 – SCOPE
These General Terms and Conditions of Business and Delivery, lay down the respective obligations of the contracting parties in connection with all deliveries or services of Pesch Machines S.A. (“Pesch Machines”) to the respective Customer (“Customer”), without prejudice to the application of special offer or contract conditions. Differing terms and conditions of the Customer only apply if they have been accepted in writing by Pesch Machines. This even applies if the Customer’s terms and conditions are not expressly contradicted.
The version of these General Terms and Conditions of Business and Delivery valid at the time of purchase shall apply.
3 – OFFER AND ORDER
The offers by Pesch Machines are non-binding and do not bind it as such, unless otherwise agreed. Unless otherwise agreed, offers by Pesch Machines are generally valid for 15 calendar days.
We do not assume any liability for messages, declarations or verbal agreements of any kind whatsoever. The contents of catalogues, printed products, price lists etc. are compiled by Pesch Machines with great care but they only include general information which is not binding on Pesch Machines and which cannot be unconditionally taken as a basis.
Models, illustrations, drawings, presentations, etc. attached to an offer by Pesch Machines or communicated before the contract is entered into only give a general idea of the goods and / or services. The corresponding photos of the machines on the Pesch Machines website are as meaningful as possible but cannot guarantee a complete similarity with the product offered, especially not in terms of colours, etc…
Subject to express assurances within a separate agreement, the information on delivery times is indicative. A delay in delivery does not justify cancellation of the order or compensation of the Customer by Pesch Machines unless this has been agreed separately.
In the event of force majeure, in particular in the event of strikes, floods, fires, wars and inclement weather conditions, Pesch Machines will be released from its obligation to deliver or from the fulfilment of an agreed delivery period, without the Customer being able to claim compensation for its costs, damage or interest.
The contract only comes into being after receipt of the order form and / or written order confirmation by Pesch Machines.
4 – PRICE
Unless otherwise agreed, the prices of Pesch Machines are calculated on the basis of the amounts of the purchase price, wages, labour costs, public charges, insurance premiums and all other costs applicable at the time of the express confirmation of the order. Any change in the above costs may result in a price adjustment. The prices stated in the offers are in euros and do not include VAT, transport costs, other taxes, customs duties, etc.
5 – PAYMENT
Unless otherwise stated on the invoice, all invoices are payable in cash at the registered office of Pesch Machines or to the financial institution indicated on the documents. Any invoice not paid by the due date shall bear interest at a rate of 10 % per annum from the invoice date by operation of law and without the need for a separate reminder. In addition, any invoice not paid by the due date will be increased by flate-rate compensation of 15% of the unpaid invoice amount, with a minimum of €150.00 as a penalty clause, by operation of law and without prior reminder.
The issue of a bill of exchange or cheque shall not give rise to any conversion of debt or any deviation from these terms and conditions.
An invoice to this effect will be issued for each partial delivery to which Pesch Machines is expressly entitled.
In the event of non-payment of an invoice by the Customer, Pesch Machines has the right to terminate the contract or the remaining contract and to consider it terminated without prior notice to the Customer or without having to apply to the court for termination, without prejudice to any additional claims for damages. In this case, Pesch Machines has the right to claim flate-rate compensation from the Customer of 20% of the order value, subject to the possibility of a higher compensation claim.
6 – RETENTION OF TITLE AND NETTING
The equipment supplied shall remain the exclusive property of Pesch Machines until full payment of the purchase price by the Customer, this retention of title not resulting in any changes with regard to the complete assumption of the risks of loss and/or destruction of the equipment by the Customer from delivery. Before the goods have been paid for in full, the Customer is required to affix a label on them clearly indicating that the goods in question remain the property of Pesch Machines. If necessary, the Customer shall also inform the judgment creditor of this by registered letter with a corresponding copy to Pesch Machines.
In the event of late payment, Pesch Machines reserves the right to collect and retain the delivered goods until payment has been made in full, the Customer granting Pesch Machines formal and irrevocable authority to act accordingly. The Customer is required to keep the equipment in good condition until full payment has been received. The Customer is not entitled to pledge the equipment or to assign it as security before the purchase price has been paid in full.
Setting off reciprocal claims between the parties takes place by operation of law and is automatic and without additional ancillary agreement, even if the claims are not in reality or in law connected, even if they do not involve claims on fungible goods and even in the event of bankruptcy or insolvency proceedings and in the event of assignment of a claim and notwithstanding cessation of payments or sale.
This automatic set-off applies to all claims by Pesch Machines or other companies connected to Pesch Machines through a direct equity interest or indirectly via the shareholders against the Customer as well as to all amounts owed to the Customer by Pesch Machines or other companies connected to Pesch Machines through a direct equity interest or indirectly via the shareholders. Should the parties fail to reach agreement on the net balance, the court seised shall determine the net amount to be paid by one of the parties to settle the balance.
7 – DELIVERY
In the following cases, Pesch Machines S.A. shall not be liable for a delay in delivery or total or partial non-fulfilment of orders, nor shall Pesch Machines S.A. be liable to pay compensation to the Customer in such cases:
– In the event that the terms of payment stated in the order confirmation have not been met by the Customer.
– In the event that the information required for the execution of the order has not been provided in time.
– If the delay in delivery or non-execution of the order is due to circumstances outside the control of the company: acts of state, strikes, accidents, fires, natural disasters, civil wars or wars with foreign countries, riots, impossibility of procuring the goods or delay of our own suppliers as well as all other events not under the control of Pesch Machines S.A.
Unless otherwise stipulated in the special terms of delivery of Pesch Machines, the equipment ordered from Pesch Machines is supplied ex works at B-4700 Eupen, Handelsstraße 4 (“Ex Works”) in accordance with the provisions of Incoterms 2010. Transport is at the Customer’s risk. The Customer shall bear all risks (in particular for loss, theft, destruction) in connection with the transport and delivery of the goods, even for goods sold carriage paid to destination and irrespective of the means of transport used, from the time of their provision by Pesch Machines. Furthermore, the Customer is liable both for damage to the goods and for damage caused to third parties. This also applies if the carrier has been chosen by Pesch Machines. The Customer must check the condition of the packaging and the articles delivered at the time of delivery. Any obvious defects in the goods must be reported immediately, no later than within eight calendar days of delivery by Pesch Machines, to the above address in writing, specifying the defects. Otherwise the delivered goods will be deemed approved.
Using the delivered goods implies irrevocable approval of them.
8 – USED MACHINES or USED ACCESSORIES
– No guarantee is given for the used machines or used accessories, either in terms of brand or capacity.
– Unless otherwise stated on the invoice, the equipment is sold in its current condition at the time the contract is entered into known to the Buyer.
– All deadlines stated for any commissioning are for information purposes only.
– The liability of Pesch Machines shall not be triggered by the services performed by Pesch Machines with the handing over of the drawings and operating instructions, if any. Pesch Machines assumes no liability of any kind for the authenticity of these documents. Pesch Machines therefore recommends checking the dimensions on the machine and on the drawings, for example before the Customer lays the foundation. This clause of the “General Terms and Conditions of Business and Delivery” cannot be changed.
– Pesch Machines is a reseller of used machines and is not a machine builder. Therefore, Pesch Machines cannot assume any guarantee or liability for the safety standards prescribed by the European Community or other countries. Pesch Machines expressly recommends that the Customer carry out an inspection before commissioning.
9 – LIABILITY
For products that do not originate from Pesch Machines’ own production, Pesch Machines shall only be liable to the extent of the guarantees granted by its suppliers.
The liability of Pesch Machines in the event of material or manufacturing defects is limited to the replacement or repair of defective goods, the Customer expressly waiving compensation. This guarantee expires automatically if payment is not made by the Customer. The guarantee by Pesch Machines does not apply to a replacement or exchange which is necessary due to normal wear and tear or damage caused by negligence or a defect for which the Customer is responsible. In the case of assembly of parts not expressly approved by Pesch Machines, the guarantee for all goods supplied is excluded.
Except in the case of contrary provisions in the special order conditions, Pesch Machines is not liable for the suitability of the equipment for a specific use. Pesch Machines is not liable for any direct or indirect damage that may result from theft or loss of the equipment. Pesch Machines can under no circumstances be held liable for the use of the equipment in any way whatsoever. Pesch Machines shall not be liable for any loss, property damage or other damage of any kind whatsoever which the Customer or a third party may incur in particular as a result of the transport, delivery, storage, transfer, use or operation of the goods supplied. This includes without limitation especially damage to the equipment, to the premises belonging to the Customer or a third party, business interruptions and personal injury.
Should the use of the machines be partially or completely impossible, in particular due to incompatibility, the Customer will not be entitled to any compensation, reimbursement or any liability claim against Pesch Machines; the Customer is solely responsible for the compatibility of the purchased equipment with the machines already in its possession. The use of the device under unusual or special conditions not expressly stated in the special conditions, as well as incorrect maintenance, modification, dismantling or repair of the equipment by an unqualified person, will also void any Pesch Machines guarantee. Should the liability of Pesch Machines nevertheless be triggered by culpable non-performance, it is expressly agreed that the compensation which the company could be required to pay is limited to the net order value (ex VAT) for the supplied equipment which caused the damage. In the event of a delay in the performance of its obligations for which Pesch Machines is responsible and subject to the application of Article 7, Pesch Machines shall pay compensation of €10 per day of delay, but not more than 15% of the price of the order not yet executed, 15 days after receipt of a reminder by registered letter from the Customer. In order to invoke the guarantee, the Customer must report any complaints by registered letter within a maximum of 8 calendar days of identifying the defects or being expected to have discovered them.
In the event of a claim under guarantee, the guarantee is limited, at the option of Pesch Machines, either to free repair (including spare parts and labour costs) or to replacement of the defective device; termination of the purchase contract or payment of damages is excluded. Unless otherwise agreed, the Customer must return the defective device to our operating site at its own cost and risk so that the repair or replacement can be carried out. Pesch Machines shall bear the cost of returning the device to its operating site and the cost of returning it to the Customer if the device under guarantee proves to be defective. From the time of delivery, Pesch Machines shall assume no further liability other than in the cases provided for in these General Terms and Conditions of Business and Delivery. Therefore, Pesch Machines is not required to pay compensation for personal injury, property damage, lost profits or other direct or indirect damages.
10 – OBLIGATIONS of Pesch Machines
Pesch Machines shall only be committed to delivery of the equipment and performance of the services expressly stipulated at the time the order was placed. All other products and services will be invoiced to the Customer at the rates in force, the Customer confirming that it has been informed of these rates during the contractual negotiations, which will be sent to it on request. The provision of services merely constitutes an obligation on the part of Pesch Machines to perform, any obligation to succeed is expressly excluded. Additional services which go beyond the original order must be requested in writing, otherwise acceptance of the equipment by delivery to the buyer shall be deemed acceptance of the additional services performed, which in such a case will be invoiced to the Customer at the applicable hourly rate. Should the equipment be sold in packaged condition, it is at the discretion of Pesch Machines to choose the type of packaging or protection, unless special packaging is specified in the special conditions. If the Customer wants special packaging, this will be invoiced to it in all cases.
11 – CUSTOMER’S OBLIGATIONS
The Customer is solely responsible for the suitability of the acquired equipment for the purposes and special requirements determined by it. At the time of delivery, the Customer must check that the equipment is in perfect condition. In particular, the reference data, the quantity, the quality and the conformity of the goods with the order must be checked.
The Customer shall bear all costs (for approval, release or otherwise) and the sole responsibility for obtaining any prior approvals that may be required by the competent authorities for the equipment. In addition, the Customer must comply with all legal requirements relating to the import of equipment from one country to the country/countries of destination. Under certain laws, including US law, the sale, transport, export and/or distribution to certain countries of equipment originating in the stated country is prohibited without authorization. The Customer may not resell, transport, reship, export or otherwise dispose of equipment originating in these countries outside the territory of the European Union unless it complies with the export regulations. Pesch Machines is not responsible for compliance with these regulations.
12 – COMPLAINTS
In order to be valid all complaints must be substantiated in writing and in detail, be specific to the equipment or services in question and must be sent to Pesch Machines by registered letter within 8 calendar days of delivery of the equipment or receipt of the invoice, the first event occurring being decisive for the calculation of the period; after expiry of this period, it will be assumed that the Customer has irrevocably and unconditionally accepted the equipment and services supplied. The acceptance and use of the equipment shall be deemed equivalent to its approval. The approval covers all obvious defects, i.e. all those which the Customer was able to identify at the time of delivery or within the following eight calendar days by careful and serious examination, in particular defects concerning the characteristics or operation of the devices.
13 – MISCELLANEOUS
In the event that the Customer is a business, all disputes arising in connection with or resulting from these General Terms and Conditions of Business and Delivery and the business relationship between Pesch Machines and the Customer shall be subject to the jurisdiction of the courts in Eupen.
All agreements to which the General Terms and Conditions of Business and Delivery refer and all other contractual relationships in this context shall be governed exclusively by Belgian law. The application of the UN Convention on Contracts for the International Sale of Goods is excluded. Should one or more provisions of these General Terms and Conditions of Business and Delivery be or become invalid, illegal or inapplicable, this shall not affect the validity of the remaining provisions. In the event of such an invalid clause, Pesch Machines and the Customer shall endeavour to replace it with a clause with effects coming as close as possible to the economic objective.