MIGSEL CONDITIONS OF SALE
1.1 In these Conditions :
´Buyer` means the person who accepts a quotation of the Seller for the sale of the Goods, or whose order for the Goods is accepted by the Seller, subject to Condition 2.1.
´Goods` means the goods - tangible or intangible - which the Seller is to supply in accordance with these Conditions.
´Seller` means Migsel bvba / Michel Wyers - Vilhoekstraat 8 - 3520 Zonhoven - Belgium.
´Conditions` means the standard terms and conditions of sale set out in this document and overleaf, and includes any special terms and conditions specifically agreed in writing between the Buyer and the Seller.
´Contract` means the contract for the purchase and sale of the Goods.
2. BASIS OF THE SALE
2.1 The Seller shall sell and the Buyer shall purchase the Goods in accordance with any quotation of the Seller or any order of the Buyer, subject in either case to these Conditions, which shall govern the Contract to the exclusion of any other terms and conditions, including in particular on the back of Buyer’s Order, provided that, where the Buyer has entered into an Agreement with the Seller, in the event of any conflict between the terms of that Agreement and these Conditions, the terms of that Agreement shall prevail.
2.2 No variation to these Conditions shall be binding unless agreed in writing between the authorised representatives of the Buyer and the Seller.
2.3 The Seller’s employees or agents are not authorised to make any advices, recommendations, representations or warranties concerning the Goods, unless confirmed by the Seller in writing.
2.4 Any typographical, clerical or other error or omission in any sales literature, quotation, price list, acceptance of offer, invoice or other document or information issued by the Seller shall be subject to correction without any liability on the part of the Seller.
3.1 The Buyer shall be responsible to the Seller for ensuring the accuracy of the terms of any order (including any applicable specification) submitted by the Buyer, and for giving the Seller any necessary information relating to the Goods within a sufficient time to enable the Seller to perform the Contract in accordance with its terms.
3.2 The quantity, quality and description of and any specification for the Goods shall be those set out in the Seller’s quotation or the Buyer’s order.
3.3 The Seller reserves the right to make any changes to the specification of the Goods which are required to conform with any applicable safety or other statutory requirements, and other changes where these do not materially affect the quality or performance of the Goods.
3.4 No order may be cancelled by the Buyer except with the agreement in writing of the Seller and on terms that the Buyer shall indemnify the Seller in full against all loss (including loss of profit), costs (including the costs of all labour and materials used), damages, charges and expenses incurred by the Seller as a result of such cancellation.
4. PRICE OF THE GOODS
4.1 The price of the Goods shall be the Seller’s quoted price or, where no price has been quoted (or a quoted price is no longer valid), the price listed in the Seller’s published price list current at the date of delivery whichever is the highest. Unless otherwise agreed in writing, all prices quoted are valid for 30 days only or until earlier acceptance by the Buyer.
4.2 The Seller reserves the right, by giving notice to the Buyer at any time before delivery, to increase the price of the Goods to reflect any increase in the cost to the Seller which is due to any factor beyond the control of the Seller (such as, without limitation, any foreign exchange fluctuation, currency regulation, alteration of duties, significant increase in the costs of labour, materials or other costs of manufacture), any change in delivery dates, quantities or specifications for the Goods which is requested by the Buyer, or any delay caused by any instructions of the Buyer or failure of the Buyer to give the Seller adequate information or instructions.
4.3 Except as otherwise stated in the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, all prices are given by the Seller including free shipping by Belgian Post. This shipping method does not include tracking & tracing and is not insured. The buyer is responsible for the goods as soon as they are in the hands of Postal Services. The seller can not be held responsible in case of damage or loss off the goods after dispatch. When the Buyer requests the Seller or the Seller’s nominated logistics service provider to deliver the Goods to a defined location other than Seller’s premises, this will be considered as a separate purchase of transport services and shall not affect the cost, risk or responsibilities of the Seller under the FCA Incoterm. In that case, the Seller shall arrange for such transport services on behalf of the Buyer, and the Buyer shall pay the Seller for any and all expenses and charges incurred for this transport and packaging and the Buyer shall be responsible for arranging transport insurance.
4.4 The price is exclusive of any applicable value added tax, which the Buyer shall be additionally liable to pay to the Seller.
5. TERMS OF PAYMENT
5.1 Subject to any special terms agreed in writing between the Buyer and the Seller, the Seller shall be entitled to invoice the Buyer for the price of the Goods on or at any time after delivery of the Goods, unless the Goods are to be collected by the Buyer or the Buyer wrongfully fails to take delivery of the Goods, in which event the Seller shall be entitled to invoice the Buyer for the price at any time after the Seller has notified the Buyer that the Goods are ready for collection.
5.2 The Buyer shall pay the Seller's invoiced price for the Goods within the relevant period specified on the face of the Seller’s invoice, notwithstanding that the property in the Goods has not yet passed to the Buyer. The time of payment of the price shall be of the essence of the Contract. Receipts for payment will be issued only upon request.
5.3 If the Buyer fails to make any payment on the due date then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to :
5.3.1 Cancel the Contract or suspend any further deliveries to the Buyer;
5.3.2 Appropriate any payment made by the Buyer to such of the Goods (or the goods supplied under any other contract between the Buyer and the Seller) as the Seller may think fit (notwithstanding any purported appropriation by the Buyer);
5.3.3 Allocate any payment by the Buyer to accrued interest; and
5.3.4 Charge the Buyer (both before and after any judgement) on the amount unpaid, at the rate equal to the sum of the interest rate applied by the European Central Bank to its most recent main refinancing operation carried out before the first calendar day of the half year in question plus 8 percent, and shall be computed daily, until payment made in full.
6.1 Except as otherwise stated in the terms of any quotation or in any price list of the Seller, and unless otherwise agreed in writing between the Buyer and the Seller, delivery of the Goods shall be made by the Seller on a FCA-Zonhoven basis.
6.2 Any dates quoted for delivery of the Goods are approximate only and the Seller shall not be liable for any delay in delivery of the Goods howsoever caused. Time for delivery shall not be of the essence unless previously agreed by the Seller in writing. The Goods may be delivered by the Seller in advance of the quoted delivery date upon giving reasonable notice to the Buyer and the Seller reserves the right to deliver in instalments.
6.3 Where the Goods are delivered in instalments, each delivery shall constitute a separate contract and failure by the Seller to delivery any one or more of the instalments in accordance with these Conditions or any claim by the Buyer in respect of any one or more instalments shall not entitle the Buyer to treat the Contract as a whole as repudiated.
6.4 If the Seller fails to deliver the Goods for any reason other than any cause beyond the Seller’s reasonable control or the Buyer’s fault, and the Seller is accordingly liable to the Buyer, the Seller’s liability shall be limited to the excess (if any) of the cost to the Buyer (in the cheapest available market) of similar goods to replace those not delivered over the price of the Goods.
6.5 If the Buyer fails to take delivery of the Goods or fails to give the Seller adequate delivery instructions at the time stated for delivery then, without prejudice to any other right or remedy available to the Seller, the Seller may :
6.5.1 Store the Goods until actual delivery and charge the Buyer for the reasonable costs (including insurance) of storage; or
6.5.2 Sell the Goods at the best price readily obtainable and charge the Buyer for any shortfall below the price under the Contract.
7. RISK AND PROPERTY
7.1 Risk of damage to or loss of the Goods shall pass to the Buyer at the time the Seller notifies the Buyer that the Goods are ready for collection or (as the case may be) the Seller has arranged transport on request of the Buyer as specified in Condition 4.3.
7.2 Notwithstanding delivery and the passing of risk in the Goods, or any other provision of these Conditions, the property in the Goods shall not pass to the Buyer until the Seller has received in cash or cleared funds payment in full of the price of the Goods and all other goods agreed to be sold by the Seller to the Buyer where payment is then overdue.
7.3 Until such time as the property in the Goods passes to the Buyer, the Buyer shall hold the Goods on behalf of the Seller, and shall keep the Goods separate from those of the Buyer and third parties and properly stored, protected and insured and identified as the Seller’s property. Until that time the Buyer shall be entitled to resell or use the Goods in the ordinary course of its business, but shall account to the Seller for the proceeds of sale or otherwise of the Goods, whether tangible or intangible, including insurance proceeds, and shall keep all such proceeds separate from any moneys or property of the Buyer and third parties and, in the case of tangible proceeds, properly stored, protected and insured.
7.4 Until such time as the property in the Goods passes to the Buyer (and provided the Goods are still in existence and have not been resold), the Seller shall be entitled at any time to require the Buyer to deliver up the Goods to the Seller and, if the Buyer fails to do so forthwith, to enter at any time without notice upon any premises of the Buyer or any third party where the Goods are stored and repossess the Goods.
7.5 The Buyer shall not be entitled to pledge or in any way charge by way of security for any indebtedness any of the Goods which remain the property of the Seller, but if the Buyer does so all moneys owing by the Buyer to the Seller shall (without prejudice to any other right or remedy of the Seller) forthwith become due and payable.
8. WARRANTIES AND LIABILITY
8.1 Subject to the Conditions set out below and the conditions of the Seller's warranty card that shall prevail, the Seller warrants that the Goods will be free from defects in material and workmanship only, starting from the date of delivery and for such period as specified by the Seller. It is the Buyer’s responsibility to ensure any spare parts supplied by the Seller are safely and competently fitted by a qualified engineer in accordance with all relevant legislation.
8.2 The above warranty is given by the Seller subject to the following conditions :
8.2.1 The Seller shall be under no liability in respect of any defect arising from fair wear and tear, wilful damage, negligence, abnormal working conditions, failure to follow the Seller’s instructions (whether oral or in writing), misuse or neglect or alteration or repair of the Goods other than by persons authorised by the Seller or if stored or used in any other manner which adversely affects their performance;
8.2.2 The Seller shall be under no liability under the above warranty (or any other warranty, condition or guarantee) if the total price for the Goods has not been paid by the due date for payment.
8.3 Any claim by the Buyer which is based on any such defect shall be notified to the Seller within 30 days from the date of delivery. If the Buyer does not notify the Seller accordingly, the Buyer shall not be entitled to reject the Goods and the Seller shall have no liability for such defect, and the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract. No Goods shall be returned to the Seller for any reason without the Seller’s prior written consent.
8.4 Where any valid claim in respect of any of the Goods which is based on any defect in material or workmanship, the Seller shall be entitled to replace the Goods (or the part in question) free of charge or, at the Seller’s sole discretion, refund to the Buyer the price of the Goods (or a proportionate part of the price), but the Seller shall have no further liability to the Buyer.
8.5 Any claim by the Buyer alleging that the quantity of Goods delivered is less than the quantity for which Seller has invoiced must be made within 7 days from the date of short delivery, and non-receipt of the Goods must be notified to the Seller within 14 days of receipt of a confirmed delivery date notice by the Buyer. If the Seller is not notified of a shortage or non-delivery within those time periods, then the Buyer shall be bound to pay the price as if the Goods had been delivered in accordance with the Contract.
8.6 The Seller shall not be liable to the Buyer by reason of any representation, or any implied warranty, condition or other term, for any consequential loss or damage (whether for loss of profit or otherwise), costs, expenses or other claims for consequential compensation whatsoever (and whether caused by the negligence of the Seller, its employees or agents or otherwise) which arise out of or in connection with the supply of the Goods or their use or resale by the Buyer, except as expressly provided in this Condition 8.
9. INSOLVENCY OF BUYER
9.1 This Condition applies if :
9.1.1 The Buyer makes any voluntary arrangement with its creditors or becomes subject to an administration order or (being an individual or firm) becomes bankrupt or (being a company) goes into liquidation;
9.1.2 A creditor takes possession of, or a receiver is appointed over, any of the property or assets of the Buyer;
9.1.3 The Buyer ceases, or threatens to cease, to carry on business; or
9.1.4 The Seller reasonably apprehends that any of the events mentioned above is about to occur in relation to the Buyer and notifies the Buyer accordingly.
9.2 If this Condition applies then, without prejudice to any other right or remedy available to the Seller, the Seller shall be entitled to cancel the Contract or suspend any further deliveries under the Contract without any liability to the Buyer, and if the Goods have been delivered but not paid for the price shall become immediately due and payable notwithstanding condition 5.2 above or any other previous agreement to the contrary.
10.1 Any notice required or permitted to be given by either party to the other under these Conditions shall be in writing addressed to that other party at its registered office or principal place of business or such other address as may at the relevant time have been notified pursuant to this provision to the party giving the notice.
10.2 No waiver by the Seller of any breach of the Contract by the Buyer shall be considered as a waiver of any subsequent breach of the same or any other provision.
10.3 If any provision of these Conditions is held by any competent authority to be invalid or unenforceable in whole or in part the validity of the other provisions of these Conditions and the remainder of the provision in question shall not be affected thereby.
10.4 The Contract shall be governed by and construed in accordance with the laws of Belgium (excluding International Convention in Sale of Goods) and the parties submit to the exclusive jurisdiction of the ICC Arbitration. The place of arbitration shall be Hasselt.
10.5 The Seller shall not be liable to the Buyer or be deemed to be in breach of the Contract by reason of any delay in performing, or any failure to perform, any of the Seller’s obligations in relation to the Goods, if the delay or failure was due to any cause beyond the Seller’s reasonable control. Without prejudice to the generality of the foregoing, the foregoing shall be regarded as causes beyond the Seller’s reasonable control :
10.5.1 Act of God, explosion, flood, tempest, fire or accident;
10.5.2 War or threat of war, sabotage, insurrection, civil disturbance or requisition;
10.5.3 Acts, restrictions, regulations, bye-laws, prohibitions or measures of any kind on the part of any governmental, parliamentary or local authority;
10.5.4 Import or export regulations or embargoes;
10.5.5 Strikes, lock-outs or other industrial actions or trade disputes (whether involving employees of the Seller or of a third party);
10.5.6 Difficulties in obtaining raw materials, labour, fuel, parts or machinery; or
10.5.7 Power failure or breakdown in machinery.