General terms and conditions of Mysurgery bvba, Galgenbergstraat 14, Tremelo, Belgium
Version valid from 01/01/2018
1.1. In the general terms and conditions below, the following definitions shall apply:
A. Seller: the besloten vennootschap (private limited company) Mysurgery (hereinafter: Mysurgery bvba), with its registered office at Galgenbergstraat 14, B-3128 Tremelo, registered at the KBO (companies register) under number 0689.984.655, whether or not trading under the name ?Tricky Leaks?.
B. Buyer: each natural and/or legal person that, whether or not as a Mysurgery bvba point of sale and whether or not for business/professionally, uses the (sales) services of Mysurgery bvba, whether or not trading under the name ?Tricky Leaks?.
C. Quote(s): all offers from Mysurgery bvba, whether or not trading under the name ?Tricky Leaks?, to the Buyer, with whom it seeks to enter into a sales agreement or other agreement.
D. Agreement(s): each service and/or sales agreement between Mysurgery bvba and the Buyer with whom an agreement is concluded.
E. Product(s): all products developed by Mysurgery bvba and/or its agents, known under the name ?Tricky Leaks?, and as they can be found, among other places, on Mysurgery bvba?s website (?Tricky Leaks?).
2.1. These general terms and conditions shall apply to all legal relationships between the Seller and the Buyer, as well as to all Quotes and Agreements between the Seller and the Buyer, unless the parties deviate from this in writing. The general terms and conditions are accessible to all and are listed on the Seller?s website.
2.2. Each order from the Seller and/or delivery to the Buyer means that the Buyer takes into account and expressly accepts these general terms and conditions (including the conditions for delivery and payment). The Seller does reserve the right to change its general terms and conditions (and in particular its conditions for delivery and/or payment) at any time, without prior notice.
2.3. Clauses or (general and/or specific) terms and conditions set by the Buyer or third parties, regardless of whether they deviate from these terms and conditions, are not valid with regard to the Seller, unless they are expressly accepted by the Seller in writing.
2.4. If a certain provision of these general terms and conditions should be found invalid for any reason, the remaining provisions shall remain applicable in full and the provision that is found invalid shall be replaced by the closest provision that is legally possible.
2.5. Online sales of the Products by the Buyer are only possible if the Buyer also has at least one physical store and if these online sales meet the same quality requirements, including pre-sales services, which the Seller imposes for offline sales. Where applicable, the provisions regarding online sales will be set out in a separate agreement.
3. Terms of delivery
3.1. All deliveries of Products and/or other items by the Seller shall take place until stocks are exhausted.
3.2. The Seller commits, taking into account the rules for distance selling/buying, to process all accepted orders at the latest within a period of 30 days, for which the principle of means must always apply ? and/or an obligation to use best endeavours. If this is thus not possible because the ordered Products and/or other items are not in stock or can no longer be delivered, because there is an abnormal delay for any reason whatsoever (not due to the Buyer), or because an order cannot be performed in full or in part (for reasons not originating from the Buyer), then the Seller shall inform the Buyer of this at the latest one month after the accepted order is placed, and in this case the Buyer has the right to cancel the order without costs or giving notice of default, with the exception of what is stated in Article 13.4.
3.3. The Seller?s obligation to deliver will, unless there is evidence to the contrary, be fulfilled when the ordered Products and/or other items are offered to the Buyer. For home delivery and/or delivery to the Buyer?s warehouses or another location chosen by the latter, the carrier?s report containing the refusal of acceptance shall serve as full proof of presentation for delivery.
3.4. Transport and any insurance costs shall always be covered by the Buyer, unless expressly agreed otherwise in writing.
3.5. As of the delivery, the Buyer shall bear all risks with respect to the sold Products and/or other items, in particular the risks of transport, even if this is taken care of by the Seller or on behalf of the Seller.
3.6. All the performance and/or delivery terms indicated on the Seller?s website are for information only, and so are only indicative. No rights may be derived from the terms indicated on the website, and they are not binding on the Seller.
3.7. No delay in the performance and/or delivery due to unforeseeable circumstances or force majeure can engage the liability of the Seller, nor can this give rise to compensation or other reimbursements, fines, or to the full or partial dissolution of the Agreement (including cancellation of the delivery) at the expense of the Seller.
4. Sale prices
4.1. The sale prices shall not be increased during the period of the offer, unless legal and/or government measures make this necessary or if the third parties which the Seller is dependent on for the production of its Products and/or other items (including suppliers and manufacturers) apply price increases in the meantime, which then have legal effect with regard to the Buyer.
4.2. All sale prices on the Seller?s website are subject to printing and typographical errors. Any consequences of such printing and typographical errors cannot engage the Seller?s liability. The sale prices are in euro and are inclusive of 21% VAT, or 6% VAT accordingly. For professional Buyers, prices are indicated exclusive of VAT.
4.3. The VAT and other potential (direct and indirect) taxes shall always be paid by the Buyer
4.4 The Seller has the right to share recommended prices for further sales of the Products to the Buyer.
5. Right of withdrawal
5.1. If there is a consumer purchase, where a distance contract is entered into between the Seller and the Buyer, the Buyer has the possibility to inform the Seller of his/her desire to withdraw within a period of 14 calendar days as of the day after the Buyer or third party designated by the Buyer physically takes possession of the Products and/or other items. The Buyer must exercise this right of withdrawal in accordance with the provisions of the Belgian Code of Economic Law, where the terms of return (by the Buyer) and reimbursement (by the Seller) are also subject to this law.
5.2. The right of withdrawal, as described in Article 5.1, shall only apply to delivered Products and/or other items.
5.3. The Buyer may not exercise the right of withdrawal under any circumstances if:
A. The delivered Products and/or other items are made according to the specifications of the Buyer or clearly intended for a specific person;
B. The delivered Products and/or other items can spoil quickly or have a limited shelf-life.
C. The sealed Products and/or other items were opened after delivery and cannot be sent back due to health protection or hygiene reasons;
D. The delivered Products and/or other items are inseparably mixed with other goods;
E. The security device of the tangible medium of the Products and/or other items, consisting of audio and video recordings and computer programmes, is broken after delivery.
5.4. The Seller?s Products and/or other items with an expiry date shall never be taken back after this expiry date, without the Buyer being able to exercise any right to (partial) reimbursement and/or full or partial dissolution of the Agreement (including cancellation of the order).
6. Data management
6.1. If the Buyer places an order with the Seller, then his/her details are included in the Seller?s customer database, unless the Buyer objects to this in writing. These data are intended for internal use, but can also serve to keep the Buyer informed of any future promotions. The Buyer has the right to view these data and request that they be corrected where necessary.
6.2. All personal data that are obtained by the Seller are subject to Belgian law, more specifically the law of 8 December 1992 on the protection of privacy with respect to the processing of personal data. If personal data and/or information are rendered anonymous, they shall cease to be personal data that are subject to the terms and conditions of this law. In this case, the above-mentioned rights and/or obligations shall cease to exist.
6.3. The Seller shall respect the privacy of the website users, also in line with its Privacy Statement that is accessible to all and is published on the Seller?s website.
7.1. The Seller?s guarantee period shall correspond to the manufacturer?s guarantee period. However, the Seller cannot be held liable for the ultimate suitability of the delivered Products and/or other items for each individual application by the Buyer, nor for any advice regarding the use or application of these Products and/or other items.
7.2. The Buyer commits to immediately check the delivered Products and/or other items. If it appears that these Products and/or items are incorrect, unsuitable or incomplete, the Buyer (before returning the order to the Seller) must inform the Seller of these deficiencies in writing. The Seller must be informed of any defects or incorrectly delivered Products and/or other items at the latest within two months after delivery. The Products and/or other items must be returned unused, in the original packaging (including accessories and the related documentation). Using the goods after the detection of defects, damages occurring after the detection of defects, encumbering and/or reselling after the detection of defects shall cause the right to make a complaint and return to lapse.
7.3. If the Seller finds that the Buyer?s complaint(s) are justified, the Seller shall be free to choose whether he/she replaces the delivered Products and/or other items free of charge or make a written arrangement regarding the compensation with the Buyer, with the understanding that the Seller?s liability shall always be limited to a maximum of the invoice amount of the ordered and delivered Products and/or other items.
7.4. The Seller shall not be liable for any damages suffered by the Buyer or its goods, except in the case of wilful misconduct or fraud. Any other case can never give rise to any form of compensation, regardless of the nature of the damages (indirect damages, consequential damages or damages due to lost profits). In addition, the Seller cannot be held liable as a result of the improper use by the Buyer of the Seller?s Products and/or other items.
7.5. The guarantee indicated above shall not apply if:
A. And as long as the Buyer fails to fulfil his/her obligations towards the Seller;
B. The Buyer has repaired/and or processed the Products and/or other items delivered to him/her and/or has had third parties repair and/or process the Products and/or other items;
C. The delivered Products and/or other items were exposed to abnormal circumstances or were otherwise handled without due care, or contrary to the Seller?s instructions and/or the instructions for use on the packaging;
D. The imperfection is fully or partly due to the requirements which the government has set or will set with respect to the nature or quality of the materials used.
8. Payment conditions
8.1. The transfer of ownership of the delivered Products and/or other items shall only occur after full payment is made by the Buyer, as also indicated in Article 14.
8.2. Within 8 days after the order is accepted, the ordered Products and/or other items must be paid for. All orders with deliveries abroad must be paid in cash.
8.3. If the invoice is not paid within the specified period, a fixed compensation fee of 10% shall be added, automatically and without prior notice, with a minimum of ? 100.00. Each invoice not paid (or not paid on time) shall also attract, from the due date for payment and without need for formal notice, interest per month commenced at the rate of interest set out in Article 5 of the Law of 2 August 2002 on combating late payment in commercial transactions, without prejudice to the costs associated with enforced recovery. The Buyer also declares, in the case of recovery on the basis of Article 1394/20 to Article 1394/27 of the Belgian Legal Code to assume all the costs, even if a dispute is still put forward during the course of the proceedings.
8.4. If the payment is not made on the due date for any reason, or if the Buyer does not or will not receive Products and/or other items that are delivered correctly and undamaged, the Seller reserves the right to suspend the performance of all current orders, without prior notice and without being liable to pay any form of compensation. If payment is not received on the due date, in any case, the Seller shall no longer be obliged to provide the Buyer with a guarantee.
8.5. Unless there is an expressly stipulated clause at the time of order, the Buyer is not entitled to deduct a certain sum from the amount due as a security.
8.6. If payment is not received within the specified period, and provided there is prior written notice of default, the Seller has the right to dissolve the Agreement at the Buyer?s expense. In such a case, the Seller reserves the right to take back the delivered Products and/or other items that are still in the Buyer?s possession, in which case the Buyer commits to cooperate for this purpose. In this case the Buyer must still pay the full invoiced price, plus the conventional compensation and the conventional interest due to late payment, at least to the value of the Products and/or other items that could not be recovered.
8.7. Advance payments cannot be recovered by the Buyer under any circumstances.
9.1. Offers are always without obligation, unless expressly indicated otherwise in the offer. The Seller cannot be deemed to be bound by an offer if the Buyer knows or at least should have known that the offer, or a part of it, contained an obvious error or writing mistake.
9.2. When a Buyer accepts a non-binding offer, which must take place in writing, the Seller reserves the right to revoke or deviate from the offer within a period of 3 working days after receipt of this written acceptance. Verbal commitments shall only bind the Seller after he/she expressly confirms them in writing. Additions, changes and/or further agreements are effective only if they were agreed in writing.
9.3. Offers from the Seller, as well as quantity discounts, do not automatically apply for any repeat orders.
10. Validity of Agreements
10.1. An Agreement between the Seller and the Buyer can only come about legally after an order from the Buyer is accepted by the Seller.
10.2. The Seller reserves the right to not accept orders, or to only accept them against advance payment, without giving any reason.
11. Termination of Agreements
11.1. The Sellers? receivables, whether or not they are a result of an Agreement between the Seller and the Buyer, are payable immediately by the Buyer in the following cases:
A. If, after concluding the Agreement with the Seller, the Seller learns of circumstances that give it sufficient grounds to fear that the Buyer will not fulfil his/her commitments/obligations;
B. If the Seller asked the Buyer, when the Agreement was concluded, to provide a security for the proper performance of the Agreement and this security is not provided or is insufficient;
C. In all cases of liquidation, bankruptcy or deferment of payment due to the Buyer, for example (but not exclusively) due to a procedure in the context of the Law on the continuity of enterprises;
D. If it appears that the Buyer is reselling the Seller?s Products and/or other items to another professional buyer or seller with a view to the further distribution of these goods;
E. If it appears that the Buyer is selling the Seller?s Products and/or other items online;
F. If it appears that there are complaints with respect to the service provided due to the Buyer (and/or his/her agents) which compromise the good name of the Seller?s Products and/or other items.
11.2. In the above-mentioned (non-exhaustive) cases, the Seller can choose either to suspend further performance of the Agreement, or to dissolve the Agreement, without prejudice to the Seller?s right to claim compensation.
11.3 Infringements of this agreement by the Buyer give the Seller the right to either suspend the deliveries or stop them right away, without the Buyer being entitled to any compensation of any sort.
12. Images and specifications
12.1. All images (including photos, drawings, etc.) as well as all details concerning weights, measurements, colours, images of labels, etc. on the Seller?s website are only intended as a guide, are indicative and cannot give rise to any form of compensation or be regarded as reason to terminate the Agreement.
13. Force majeure
13.1. The Seller cannot be held liable if and insofar as he/she cannot fulfil his/her commitments due to force majeure.
13.2. Force majeure is understood to mean, among others: unforeseen circumstances of any nature whatsoever such as (but not limited to) mobilisation; war and the threat of war; quotas or other government measures; strikes; traffic congestion; fire; frost; epidemics; traffic disturbances, a lack of equipment or means of transportation; demonstrations; electricity, computer and network failures; as well as delay and/or omission/negligence by third parties (including suppliers and/or manufacturers) on whom the Seller is dependent for any reason whatsoever in order to properly fulfil his/her obligations towards the Buyer, as a consequence of which the Seller cannot reasonably be expected to perform his/her obligations on time or at all, or not without major additional efforts and/or costs.
13.3. In cases of force majeure, the Seller reserves the right to suspend his/her obligations and is also entitled to fully or partially dissolve the Agreement, or to require that the contents of the Agreement be changed in such a way that its performance remains possible. Under no circumstances can the Seller be obliged to pay any penalty and/or compensation.
13.4. In the event of suspension and/or termination as a result of force majeure, the Seller has the right (if applicable) to charge the part that has been delivered or can be delivered to the Buyer and the Buyer commits to pay this invoice and to make the payment to the Seller. This does not apply if the part that has been delivered or can be delivered does not have any independent value.
14. Retention of title
14.1. All Products and other items sold and/or delivered to the Buyer by the Seller shall remain the property of the Seller, pending full payment of the sale price (where applicable together with fines, costs and interest), even if they were incorporated and/or changed in any way. The same shall apply for as long as the Buyer, other than his/her obligation to pay the sale price, has not fulfilled his/her commitments pursuant to these Agreements or earlier/later similar Agreements, including activities which the Buyer has not carried out or are still to be carried out under this or similar Agreements. All risks with respect to this shall be borne by the Buyer.
14.2. The Products and/or other items sold by the Seller that fall under the above-mentioned retention of title may only be resold in the context of normal business operations, but never used as a means of payment. However, as a point of sale for the Seller, the Buyer is never permitted to sell these products and other items to another Buyer (in particular, though not exclusively, the Seller?s points of sale), not even in the case of bankruptcy.
14.3. The Buyer is not entitled to pledge the items falling under the retention of title or to encumber them in any other way.
14.4. By placing an order, the Buyer gives unconditional and irrevocable consent to the Seller or to a third party freely appointed by the Seller, in all cases in which the Seller wants to exercise his/her property rights, to enter all the places where his/her property will then be located and to remove these Products and other items from there.
14.5. If a third party seizes the Products and other items sold under retention of title, or intends to establish or claim rights to these Products or other items, the Buyer commits to immediately, or at least within a reasonable period which the Seller may not harm in any way, inform the Seller of this in writing.
15. Applicable law ? Competent court
15.1. Only Belgian law shall apply to all the Agreements.
15.2. In the event of a dispute regarding the interpretation and/or performance of the Agreements with the Buyer (including the general terms and conditions mentioned above), only the courts of the legal district of Leuven, or the justice of the peace for the first canton of Leuven shall have jurisdiction to hear and pass judgement in accordance with Belgian law and/or business practices, where the Seller reserves the right to issue a summons against the Buyer to appear at the courts with territorial jurisdiction, in accordance with the Buyer?s place of residence and/or registered office. The Parties also commit to always try to resolve any dispute by common accord.