GENERAL SALES CONDITIONS v1.4
Article 1 General
1. In these conditions Drac BVBA, residing in Komiteitstraat 54, 2170 Merksem, is further referred to as Drac and its contractual partner as buyer. In case of delivery of services DRAC is fellow contractor and purchaser is client.
2. These general conditions apply to all offers from and agreements with Drac.
3. Once a buyer has contracted DRAC under these conditions, he is considered to have agreed with the applicability of these general conditions whether any orders follow orally, in writing, by e-mail or by fax.
4. Buyer is not considered as (trade) agent or distributor of Drac unless he is appointed as such by written agreement.
5. These conditions can only be deviated from if explicitly agreed in writing.
Article 2 Offers
1. All offers are without obligation, unless otherwise stated in the offer.
2. The price currents and price indications of Drac are not an offer.
3. Upon acceptance of an offer without obligation, Drac reserves the right to revoke or deviate from the offer within 2 working days after receipt of the acceptance. DRAC will notify the buyer in writing stating reasons.
4. Verbal agreements only oblige Drac after a formal acknowledgement in writing.
5. A buyer’s purchase- and other conditions are expressly rejected by DRAC unless explicitly accepted in writing.
Article 3 Conclusion of the contract
1. Agreements are only concluded after an order or recovery is determined on feasibility by DRAC. Drac is entitled to refuse orders or assignments, without giving any reason or only to accept on condition that the transmission takes place COD or prepayment, in which case the purchaser shall be informed accordingly.
Article 4 Images
1. All images, drawings, information on weights, dimensions, colours, etc. included in price lists, websites and leaflets, are only approximate and are no inducement to damages and or termination.
2. All by, or on behalf of Drac created designs, pictures, etc. referred to in paragraph 1, shall remain property of Drac and can not be copied or otherwise reproduced or shown to third parties or used in any other way, without explicit written permission.
3. The purchaser is obliged to return this data at first request to DRAC on pain of penalty amounting to 500 EUR per day.
Article 5 Prices
1. The materials of Drac are supplied at the prices applicable at the time of ordering with Drac. The services of DRAC are performed at the price which DRAC calculates, after providing services according to its usual manner.
2. For orders below a certain net value, a fee for shipping and handling will be charged. The cost of express shipment will only be charged to the purchaser when such a shipping method is requested.
Article 6 Dispatch / delivery
1. Deliveries take place solely within the Belgian borders, unless explicitly agreed differently.
2. Delivery of orders normally amount to 30 days maximum, unless otherwise stated or mentioned. This delivery time is an indication and not a deadline.
3. If the agreed delivery time for any reason is exceeded by Drac, Drac will notify the customer in writing (fax, letter, and e-mail). In that case, the customer has the authority to discontinue the agreement with Drac, by writing (fax, letter, e-mail) to Drac.
4. Any in the context of the previous section, already made payments by the customer, will be refunded to the customer’s bank account as soon as possible but by all means within fourteen (14) days after Drac received the request mentioned in article 6.3 to terminate the agreement.
5. The delivery times indicated by Drac will never be regarded as deadlines, unless explicitly agreed otherwise.
6. Delivery occurs at the place and time when the goods are ready for shipment to the customer. Drac reserves the right to ship and invoice the deliveries partially.
7. Unless otherwise agreed in writing, Drac determines the method of shipment. In case Drac has chosen the shipping mode, the goods travel at the risk of Drac. Drac bears the risk of the goods to the moment the goods are delivered at the specified address.
8. If the delivery is delayed or speeded up at the request of the buyer, then the buyer is obliged to pay the associated costs.
9. Drac is entitled to charge extra labour hours if the delivery is delayed by circumstances beyond control of Drac.
10. Drac is not bound to redeliver once supplied products, if these are taken out of production by him or his suppliers, or for some other reason eliminated from its sales program.
11. The buyer is obliged to receive the goods at delivery. Failing this, the goods will be stored at the expense and risk of the purchaser.
12. In case the buyer despite summations has not collected the goods within three weeks from the repository, Drac has the right to by it’s choice privately or publicly sell the goods and hold the original purchaser responsible for any loss. The original purchaser is always obliged to compensate the costs of the aforementioned storage and the by Drac made (extra) shipping and handling costs.
13. Exceeding a delivery date shall never give purchaser the right to claim any damages from Drac.
14. Drac has the right to charge transport and handling costs.
15. For deliveries not exceeding 125 Euro VAT Excluded, an administration fee of 15 Euro will be charged, the transport costs will be calculated according to the weight of the ordered goods.
Article 7 Payments
1. Payment shall, unless otherwise agreed in writing, be made in cash on the actual delivery of the goods or after the performance of the agreed services. In case Drac sends an invoice, the payment for goods delivered and / or services performed, has to take place at the (post-) bank account of Drac as stated on the invoice and within eight days after the invoice date unless otherwise agreed in writing. When payment is done within eight days, the customer is entitled to subtract a financial reduction of 2% on the total amount.
2. Drac is entitled to increase the invoice amount (excluding VAT) with a so-called credit limitation surcharge of 3% on that amount. For payments within art. 7.1, purchaser shall be entitled to deduct the relevant amount from the invoice amount (excluding VAT).
3. If Drac has granted abatements to the buyer, the buyer is entitled to deduct this discount from the price, unless payments are not in time and / or invoice amounts are overdue.
4. Payments made by the buyer always conduce in settlement of interest and costs, and thereafter invoices which have been overdue the longest, even if the buyer mentions that the payment relates to a later invoice.
5. If the buyer has not paid the invoice by the due date, without prior notice an interest of 4% on the outstanding amount per month, or a part thereof, is due to Drac, whereby a commenced month is counting for an entire month,.
6. If the purchaser has not paid the amount owed by him within the prescribed period and Drac has proceeded to collect the claim by judicial or other manner, the buyer is obliged to pay Drac a compensation due to the associated costs, with a minimum of € 250, - per invoice.
7. Late payment entitles Drac to suspend or terminate its performance pursuant to the present and / or other agreements with the buyer, without the purchaser being entitled to damages or rescission of the contract and without prejudice to the right of Drac in a possible loss of profit and other consequential damages.
8. Drac is at all times entitled to demand that the buyer sets sufficient security for the payment of the services to be provided by Drac, all this in a manner to be specified by Drac.
9. The buyer is not allowed to set off claims.
10. Accepted complaints and / or warranty claims give no right to defer payment or partial payment.
11. Bills are accepted under charging discount costs only after prior agreement and only for the purpose of payment. Drac does not guarantee the timely presentation of the bills.
12. Checks, bills and foreign currency obtain only as prepayment after their redemption.
13. Drac has no current account relationship to any of her buyers.
14. As from 01.01.2013, Drac provides that all invoices are digitally delivered, if the customer wants to receive an invoice by post, an administrative fee of 2.5 euro per invoice will be charged.
15. If a reminder invoice should be sent, or by mail, or via digital means a reminder fee of 9 euros will be charged per reminder plus overdue interest as discussed in section 7.5
Article 8 Retention and pledge
1. The ownership of the goods delivered by Drac is expressly reserved until full payment, including the payment of all costs and interest, including previous and subsequent deliveries and services, as well as damage claims for failure to comply has occurred.
2. The buyer is not allowed without written permission from Drac to sell, rent, use or move outside his office, to pledge or otherwise transfer to objections.
3. The buyer is obliged to make the business available on first demand of Drac, and shall at this time irrevocably authorize Drac or persons designated by Drac, to enter the place where the goods are located, in order to take the goods.
4. Drac provides in accordance to subsection 1 to the purchaser the ownership of the items listed at the moment the buyer has fulfilled all his obligations, but subject to the lien of Drac for the purpose of other Drac liabilities which appeal to the buyer. The buyer will assist at first request by Drac, with operations that in that context are required, on penalty of a fine of € 500, - for each day that the buyer thus remains negligible.
5. Goods or parts thereof, which are under a reinstatement or warranty replacement, therefore become or remain property of Drac until full satisfaction of all that Drac claims from the buyer has occurred.
6. Unclaimed repairs will be without prejudice property of DRAC 6 months after the repair.
Article 9 Trademark
The trade names, trademarks, the type numbers, identification numbers or marks that are applied on the by Drac delivered goods, may not be removed, damaged or altered.
Article 10 Additional services
Drac has a number of additional services in its range such as hosting, service contracts, service level agreements, websites, data hosting, remote backup, and others. If one or more of these services are delivered, the buyer also notes the additional conditions which belong to these services.
Purchaser confirms that he has received and approved the additional conditions for his / her service with this document.
Article 11 Complaints
1. Complaints in general and complaints about invoices must be made within eight days after receipt of the goods or invoices, or within eight days after a defect in the goods is discovered or had to be discovered in writing and with a proper description of the complaint to Drac. After the expiry of this period, Drac deemed to have fulfilled its obligations correctly, and it is assumed that the buyer accepts goods or invoices as correct.
2. Complaints never entitle the buyer to suspend payments.
3. If a complaint is justified by Drac, Drac has the right to elect: - to revise the invoice and change the amount accordingly; - to replace goods with the same specifications or to repair the replaced goods or parts issued - discontinue the delivery and the agreement, a refund of the amount paid by the buyer invoice without any compensation being due.
4. Complaints regarding matters belonging to a partial delivery do not affect previous and next instalments that are part of the same order.
5. Small, commercially or technically unavoidable deviations and differences in quality, colour, size or finish, are no reason for complaint.
6. in that case the buyer must, offer Drac the opportunity to repair any defects.
7. Possible return of goods to or from the buyer is at expense and risk of the purchaser. Drac only accepts return of goods if and insofar as she beforehand in writing accepts the return, and then only when these goods are delivered at the by Drac specified address in original packaging and in the condition that Drac delivered these goods to the purchaser.
8. Software of which the seal is broken or the registration has been completed, can never be returned.
Article 12 Guarantee
1. Drac is responsible for the quality of the by best knowledge and ability delivered services and for the soundness and the good quality of the goods delivered, provided that the guarantee does not exceed the following provisions mentioned.
2. On a reinstatement performed three months warranty is granted. On the supplied electronic devices 24 months warranty are granted if it is a private individual, 12 months warranty if a business user, in all other cases 12 months (e.g. housings, cables, etc.) or unless otherwise agreed in writing. Here is an exception if the manufacturer states that this period is shorter or longer, and then there is up to 24 months warranty only on labour & transport for individuals and 12 months for business users, not on parts.
3. If the buyer has ordered Drac for repairs and does not pick up the goods within three months from the date of issue, and paid the due examination or repair amount, he shall be deemed to have waived the repaired for Drac. The buyer will safeguard Drac from all claims by third parties relating to this matter.
4. Errors demonstrated by purchaser within the warranty period and to Drac culpable errors, defects or deficiencies - if covered by the guarantee referred to in this article - are as soon as possible, repaired, replaced, or taken back at credit on behalf of Drac.
5. On merged products and components, nor consumables Drac does not grant warranty, unless a guarantee is expressly agreed in writing.
6. The buyer must deliver goods qualified for replacement or repair on the by Drac specified address at own risk, quoting an at Drac obtained admittance.
7. For cases other than a Drac enclosed warranty the conditions below apply, if different from these conditions prescribed.
8. The buyer cannot rely on the warranty if: • the buyer has neglected the materials • the buyer has made changes on the materials or changes are made by a third party, including repairs not performed by or on behalf of Drac • by improper or careless use, wrong connection, wrong voltage, lightning, damaged by humidity or other external causes or misfortunes. • The device is not maintained on the usual manner or the manner described in the manual • the device is used with unsuitable or faulty accessories • if the buyer has handled the materials carelessly in any other way.
9. If buyer does not, not quite, or not timely fulfil any obligation arising from the agreement(s) concluded with Drac, then the buyer is not kept up with guarantee.
10. The warranty on second hand goods is consistently defined in the sales documents, if not there is always a guarantee provided of 7 days from purchase date.
Article 13 Limitation of Liability
1. Drac, nor third parties it involves for the conclusion or performance of any agreement, is liable for any damage arising from and in connection with the agreement, which buyer or any third party in connection with the execution of the agreement may suffer, direct or indirect, whatever the cause is.
2. Undiminished the foregoing, Drac is in any case not liable: by non- or non-timely delivery; • for information in brochures, catalogues, advertising material, offers etc. • in case of non-attributable failure (force majeure), as referred to in Article 15 • If the purchaser or a third party should repair the delivered goods, alters, uses these for purposes other than for which they are suitable or intended for, overloads the delivered goods or other improper use • for the properties of third parties which are in case of repair, storage or for whatever reason located in Drac's premises; • for business and / or consequential damages from any cause whatsoever; • for damage caused by intent or gross negligence of assistants; • for damage caused by software supplied; • for damages resulting from loss of data stored on magnetic media; • for damage caused by the use of the telephone connected modem including data loss, theft of data, incorrect transmission of data, corruption of data or other files as well as telephone lines remaining open.
3. If Drac in any case, despite the above, is liable for any damage, Drac accepts liability only to the extent that such liability is covered by its insurance, upto the amount of the payment made by the insurance.
4. If in any case the insurance not proceeds to pay, Drac is never liable for more than the invoice amount for the concerning agreement.
5. The buyer will preserve Drac against all claims of third parties against Drac.
6. The exclusions or limitations of liability included in these conditions do not apply if the damage is due to intent or gross negligence of Drac or her subordinates.
Article 14 Non-attributable shortcomings
1. Drac is not liable if and to the extent its obligations cannot be met by force majeure.
2. Force majeure shall mean any external cause, and any circumstance which reasonably she cannot be held responsible for. Delay or failure by our suppliers, transportation difficulties, strikes, government measures, delays in supply, omissions of suppliers and / or manufacturers of Drac as well as from assistants, disease of manpower, defects in shipment- or transportation tools count explicitly as force majeure.
3. In case of force majeure Drac reserves the right to suspend its obligations. Drac is also entitled to remit the agreement in whole or in part, or to demand that the content of the agreement is amended to enable performance. In no event shall Drac account for any penalty or damages. Drac reserves the right to be paid for work already performed and costs incurred.
4. Drac has no power to suspension if performance is permanently impossible or if a temporary impossibility lasts longer than six months. In these cases the agreement can be disbanded by either party, without the purchaser being entitled to compensation for any damage.
Article 15 Dissolution
1. If the buyer does not accomplish obligations towards Drac, not timely or duly, and if bankruptcy is /will be requested, is declared in a state of bankruptcy, he requests suspension of payments to its creditors or some of them offers an arrangement or a composition, also by seizure of its assets or any part thereof, or he proceeds to sell or liquidate its business, and in the event of death, receivership or if he derogates the management or direction of his company, business or a part thereof in any other way, the buyer is in dereliction and any claim that Drac dependents on or acquires, is immediately due and payable without any notice being required.
2. In the cases referred to under 1, Drac reserves the right, without notice, for its part, to suspend the further performance of the agreement or to remit the agreement in whole or in part.
3. Drac is at all times entitled to claim the delivered goods back from the buyer as indemnification.
4. If the buyer wishes to terminate the agreement, he will always first set Drac in writing in default and provide a reasonable term to fulfil its obligations, or to repair deficiencies, shortcomings which buyer should describe written accurately.
5. The buyer is not entitled to fully or partially terminate the agreement, nor to suspend his obligations if he was already in default with the fulfilment of his obligations.
6. In case of partial termination, the buyer is not entitled to undoing of work performed by Drac, and Drac has full right to payment for the already executed performances.
7. For goods ordered using www.drac.be the customer has the right to abandon approval of its sale if written reported to DRAC within 7 days after delivery or offer.
Article 16 Applicable law / jurisdiction
1. All agreements are subject to Belgian law.
2. Disputes resulting from an agreement between Drac and buyer, which cannot be resolved by mutual agreement, the competent court in the district of Antwerp takes knowledge unless Drac prefers to submit the dispute to the competent court of the domicile of the purchaser, and with the exception of those disputes that fall under the jurisdiction of a magistrate.
Article 17 Partial invalidity
1. If one or more provisions of an agreement between Drac and purchaser would prove to be non-binding, then the remaining provisions of this agreement between the parties stay operative.
2. Parties commit themselves to replace the non-binding provisions by such provisions that are binding and minimal - regarding to the purpose and intent of this Agreement - differ from the non-obligatory provisions.