1.1. The present general terms and conditions of sale apply to products sold by EDIVA NV, having its corporate seat at 8570 Anzegem, Heirbaan 73, with VAT number and Belgian Companies Register number BE.0886.986.707 (hereafter referred to as “EDIVA”),
1.2. The present general terms and conditions of sale are systematically attached to every physical commercial proposal delivered by EDIVA to potential and existing customers and the customer specifically acknowledges that he or she is aware of their content. As a consequence, every order placed with EDIVA necessarily implies the customer’s full acceptance, as a substantial and determinant condition, of the present general terms and conditions of sale.
1.3. EDIVA’s general terms and conditions of sale constitute the law between the parties and apply to all EDIVA’s customers, who are deemed to have accepted them as such. They shall prevail over any clause to the contrary which EDIVA has not expressly accepted in writing. In any event, all stipulations to the contrary made by EDIVA’s customers shall not be, under any circumstances, enforceable on EDIVA.
1.4. The fact that EDIVA, at any given moment, does not rely upon or enforce any particular provision in the present general terms and conditions of sale shall not be considered as a waiver of any of the said terms and conditions in the future.
2.1. Unless explicitly stated otherwise, all prices are quoted in Euros, exclusive of VAT and any other tax and/or royalty or any other cost.
2.2. Prices stated on EDIVAS’s website or in any other publication of EDIVA are subject to change without notice and do not constitute either a final price proposal. Such documents only constitute a general source of information and prices stated on those documents must be confirmed by EDIVA.
3-OFFER - ORDER - RISK – DELIVERY
3.1. All products and prices listed on EDIVA’s website or in any other publication of EDIVA are purely informational and do not constitute an offer of sale. Potential and existing customers make a Sale Offer by filling in and signing a purchase order (off-line sale) or selecting the desired products on EDIVA’s merchant website (online sale).
3.2. Upon receipt of the sale offer, EDIVA emits a Sale Offer Receipt, which is emitted automatically and recapitulates the customer’s Sale Offer. The Sale Offer Receipt constitutes EDIVA’s acceptance of the Sale Offer, subject to the effective availability of the products indicated in the Sale Offer Receipt. Available products will be shipped jointly to the customer.
3.3 EDIVA explicitly reserves itself the right to only accept and perform the Sale Offer Receipt pertaining to available products. For Products which are not immediately available, EDIVA will notify the customer of the estimated timeframe in which the unavailable product(s) will be available again, and when shipment may be expected. For products which are not available anymore, EDIVA will offer the customer the choice between reimbursement of the unavailable products or the adaptation of the Sale Order for a value equal to the unavailable products.
3.4. Delivery of the products is effected according the place and under the conditions indicated in the Sale Offer Receipt. Delivery to the Benelux and France occur according to Incoterm DDU.
3.5. The customer is obliged to verify that the delivered products are in good condition before taking delivery, to count the number of products delivered and to express any reservations to the carrier and mention them on the bill of lading/delivery note, in default of which any claim due to transport and or packaging damage will lapse.
3.6. Sale Offers accepted by EDIVA have no fixed delivery date. In the event the customer desires a fixed delivery date, this must be addressed in a separate writing to EDIVA simultaneously with the emission of the Sale Offer. The acceptance of such constraining delivery date by EDIVA must be in writing and cannot be presumed by the mere issuance of a Sale Offer Receipt or (partial) delivery of the products. In the event EDIVA does not accept the fixed delivery date in writing, EDIVA nevertheless will do its best to deliver the order in time, but the timeframe of the entered order will not have a compulsory nature towards EDIVA. In the event of delivery after an informational or estimate delivery date, the customer shall not be entitled to any compensation nor may not refuse the products nor terminate the contract.
4- INTELLECTUAL PROPERTY
4.1. No customer of EDIVA shall display or make use of any trademark, logo, document, project, research or any other intellectual property belonging to EDIVA without the express written and prior authorisation of EDIVA for the sole purpose of promoting the resale of products commercialised by the customer under normal conditions as affecting its trade. EDIVA reserves the right to object to, prevent or claim compensation for any usage which it judges to be unfair competition or as constituting an act of free riding, or as contrary to its image or contrary to any rights that it may have granted or which may have been granted to it.
4.2. Unless explicitly agreed in writing by EDIVA, EDIVA remains the sole owner of all intellectual property rights related to the products.
5- CLAIMS – CANCELLATION
5.1. Any claim regarding non conformity of the delivered products or apparent defects need to be addressed in writing by recorded mail to EDIVA within the 3 days following the effective delivery date, under penalty of forfeiture.
5.2. Any claim regarding hidden defects of the delivered products need to be addressed in writing by recorded mail to EDIVA within the 2 weeks of their discovery and in any case before the end of the sixth month following the effective delivery date, under penalty of forfeiture.
5.3. Any other claim regarding delivered products need to addressed in writing by recorded mail to EDIVA within the 8 days following the effective delivery date, under penalty of forfeiture.
5.4. Every order accepted by EDIVA and cancelled by the customer will entail the payment of cancellation fees, including in particular already incurred costs and commitments made by EDIVA. Cancellation fees are fixed to a minimum of 35% of the value of the products concerned by the cancellation.
5.5. Every order accepted by EDIVA may be cancelled by EDIVA at any time. In such event, EDIVA commits to refund the sums already transferred by the customer. The customer acknowledges that in such event EDIVA will not incur any liability whatsoever for any direct or indirect damages suffered by the customer.
6.1 Except immediate payment through EDIVA’s online merchant website, invoices are payable, in full amount, within thirty (30) civil days after the date of invoice, on the sole Bank Account of EDIVA at BNP Paribas Fortis, IBAN BE32 0015 1270 5502, BIC GEBA BE BB.
6.2. Payments will be made in the currency stated on the invoice, with no reductions applied due to taxes, charges or any fees of a similar kind, whether fiscal or parafiscal, direct or indirect, and in particular including VAT and bank charges.
6.3. All invoicing errors must be reported in writing by the customer within ten (10) days after the date of erroneous invoice, in default of which no credit shall be granted.
6.4. Penalties shall be applicable as of right to late payments. Any amounts remaining unpaid more than seven (7) days after any of the time periods provided for payment shall produce interest at a rate of 1% per month over the sanctionable period. EDIVA shall not be bound to give formal notice to the customer, which expressly exempts EDIVA from any such duty.
6.5. Any late payments shall lead as of right the option open to EDIVA to invoice to the customer the costs of follow-up, formal notice, collection, and more generally of all costs of any kind whatsoever related to the recovery of the sums due to EDIVA. In the event of recovery by bailiff or judicial process, an indemnity amounting to 10% of the sums due shall be payable under a penalty clause, with a minimum lump sum of 150 EUR.
6.6. EDIVA shall only agree in writing to offset when the debts in question are reciprocal, certain, liquid and payable, in other words in compliance with the stipulations laid down in Articles 1289 and following of the Belgian Civil Code covering the mechanisms by which compensating claims can be legally settled. Offsetting of any lateness penalties or claims resulting from damage shall only be possible under this heading after EDIVA has been able to check the relevant claim and subject to the provisions of the present general terms and conditions of sale as regarding the assessment and evaluation of such penalties. In any event, under these circumstances, a customer proceeding to offset shall indicate which invoices are in question so as to enable EDIVA to make the necessary adjustments to its accounts and to avoid payment difficulties.
6.7. In the event of the customer being liable for several payments to EDIVA, it is agreed that the payments shall be allocated to the earliest debts. In consequence, the customer expressly waives the provisions of Articles 1253 to 1256 of the Civil Code.
6.8. EDIVA reserves the right to decide, with respect to each of its customers, the maximum sum of supplier’s credit outstanding, in accordance in particular with financial information communicated to it.
6.9. In the event of a deterioration in the customer’s credit rating or in default of sufficient financial information, EDIVA reserves the right, to require of the customer whatever guarantees it judges to be useful for the satisfactory performance of undertakings made. A refusal to give satisfaction in that regard will give EDIVA the right to require payment before delivery of the products and/or to cancel the order at no cost and thus to put a stop to any delivery of products.
7.1. Transfer of property and of any other right relating to the order is subject to complete payment by the customer, payment being understood as the complete de facto encashment by EDIVA of the agreed price in terms of principal and interest and inclusive of all related fees.
7.2. Any transformation or incorporation into new products of the products delivered by EDIVA to the customer before complete payment, is deemed to have occurred on behalf of EDIVA, which acquires ownership of said new products, without it being in any way liable vis-à-vis any third party. If necessary, the customer shall indemnify EDIVA in full.
7.3. The customer unconditionally and irrevocably assigns to EDIVA all receivables and/or claims that he or she may possess vis-à-vis third parties following the resale of the products which are not yet completely paid to EDIVA.
EDIVA reserves the right to suspend or cancel the customer’s order, either in whole or in part, in the event of force majeure, defined as any event liable to prevent, reduce, delay or render the creation, manufacturing or transmission of the order economically unprofitable, or to impede the normal functioning of the market, when its own liability cannot be imputed. The following are defined as examples of force majeure, although the list is not exclusive: measures taken by the civil or military authorities; fires; floods; epidemics; quarantine restrictions; wars; embargoes; riots; strikes; lock-out; transport delays; death; theft of computers; damages to computers or hard-discs due to known or unknown viruses, crashes or any similar electronic problem or any other circumstances which make it impossible for EDIVA, as a result of causes beyond its reasonable control, to obtain the necessary resources in staffing or means of production from its normal suppliers. In the event of such a delay, any fixed delivery date accepted in writing by EDIVA shall be put off so as to allow a reasonable period in compensation of the delay.
9 TAXES AND OTHER LEVIES
The customer shall pay for or reimburse EDIVA for all taxes, indirect taxes or levies of a similar kind, whether fiscal or parafiscal, direct or indirect, as well as all other particular levies imposed by regulatory requirements, including in particular VAT on services rendered and/or on the purchase, delivery or dispatch concerned.
10-APPLICABLE LAW AND JURISDICTION
The present general terms and conditions of sale are governed by Belgian law. Any dispute that may arise in connection with the present general terms and conditions of sale shall be submitted to the courts of Kortrijk to whom the parties expressly grant exclusive jurisdiction, even in the event of multiplicity of defendants or proceedings against the guarantor and irrespective of the location from where the customer has placed his order.