Sales Terms & Conditions
I. GENERAL PROVISIONS
Art. 1 Applicability
1.1 The legal relationship between BOSS paints NV (hereinafter referred to as ‘BOSS’) and the Buyer or Hirer (hereinafter jointly referred to as the ‘Customer’) shall be governed exclusively by these General Terms and Conditions of Sale and Hire. The Customer therefore acknowledges that its general or special terms and conditions do not apply to the Agreement.
1.2 The General Terms and Conditions of Sale and Hire shall be valid from the time of the order placed by the Customer and are hereinafter referred to as the ‘Purchase Agreement’ or the ‘Hire Agreement’ and jointly as the ‘Agreement’.
1.3 Failure by BOSS to enforce. or a delay in the enforcement of, all or part of a provision of the Agreement cannot be considered a waiver of any of its rights under the Agreement now or in the future.
Art. 2 Purchase Price and Hire Price
2.1 The price of the Purchased and the Hired Materials, hereinafter referred to respectively as the Purchase Price and the Hire Price, is exclusive of VAT and exclusive of the costs of delivery or collection of the Purchased or Hired Materials. The costs may be payable by the Customer and shall be invoiced separately where applicable. They are also exclusive of VAT and tax, which must be paid in addition to the Costs.
2.2 The Hire Price shall be calculated according to the number of effective days of use, subject to a minimum of one (1) day. The following days are not classed as effective days: day of delivery, day of return, weekends, public holidays and days on which BOSS paints is closed.
Art. 3 Payment
3.1 Unless stipulated otherwise, all invoices shall be payable at the company’s registered office within thirty (30) days of the invoice date.
3.2 Unless stipulated otherwise, all invoices shall be payable by transfer to the account number stated on the invoice or by direct debit. Invoices may also be paid in cash, however up to a maximum of EUR 3,000.
3.3 Complaints must be submitted within a period of eight (8) days following delivery by registered mail, prior to any use of the goods.
3.4 The Purchase Price or Hire Price and any costs shall only be effectively paid from the time they are actually received by BOSS in full.
3.5 In the event of whole or partial non-payment of the amount owed by the due date, interest shall be due at a rate of 12% on all invoices from the due date until the amount is paid in full, automatically and without prior notice of default.
3.6 In the event of whole or partial non-payment of the amount owed by the due date, the outstanding amount will also increase automatically and without notice of default by a 12% fixed fee by way of damages, subject to a minimum of EUR 80 and a maximum of EUR 2,500.
3.7 In the event of failure to pay any invoice by the due date, the outstanding balance of all other invoices shall automatically become immediately payable, irrespective of whether or not they are due.
3.8 If when placing an order the Customer requests that the invoice is addressed to a third party, the Customer shall remain jointly and severally liable with this third party for compliance with all obligations, despite the invoicing of a third party.
Art. 4 Right of retention
4.1 In the event of non-payment, BOSS has a right of retention in respect of all items it has delivered to the Customer until the principal sum, any interest and costs have been paid in full.
Art. 5 Delivery
5.1 Delivery dates are merely indicative and are therefore non-binding unless explicitly agreed otherwise. A delay in delivery shall under no circumstances constitute grounds for default penalties, compensation or termination of the Agreement at the expense of BOSS.
Art. 6 Force majeure
6.1 In the event of force majeure on the part of BOSS, delivery shall be suspended for as long as the situation of force majeure prevents BOSS from executing the Agreement, without prejudice to BOSS’s right to terminate the Agreement without judicial intervention.
6.2 Force majeure shall not give the Customer any entitlement to termination, compensation or breach of the Agreement.
Art. 7 Liability
7.1 The total liability of BOSS vis-à-vis the Customer (including acts or omissions made by its employees, agents and/or subcontractors) in respect of the performance of the Agreement shall be limited as follows.
7.2 Any liability of BOSS shall be limited to the liability imperatively imposed by law. BOSS cannot under any circumstances be held liable for indirect damage such as, however not limited to, loss of sales, loss of profits or any increase in general costs.
7.3 If BOSS is considered liable in accordance with Art. 7.2, the maximum amount of its liability shall in any event be explicitly limited to the Purchase Price or Hire Price, exclusive of VAT and costs.
Art. 8 Suspension and termination
8.1 In the event of whole or partial non-payment by the due date specified in Art. 3.1, BOSS shall be entitled to decline any new agreement with the Customer or to suspend any current Agreement with the Customer.
8.2 Without prejudice to the provisions of Art. 8.1, BOSS has the right to suspend compliance with its obligations, tacitly if necessary, if the Customer fails to meet its commitments, without prejudice to the Customer’s existing commitments towards BOSS.
8.3 BOSS reserves the right to deem the Purchase Agreement or Hire Agreement to be terminated at the detriment of the Customer, automatically and without notice of default, in the event of bankruptcy, judicial composition, deferral of payment, manifest insolvency of the Hirer, dissolution, liquidation, publication supra protest, court summons due to late payment, the opening of a file by an entity for the investigation of companies in difficulties, sale, transfer, establishment in another country, pledging, or transfer to a company of its business enterprise or its equipment by the Customer.
Art. 9 Miscellaneous
9.1 Invalidity of any of the provisions of the Agreement shall in no way affect the validity of the remaining clauses.
Art. 10 Transfer
10.1 BOSS may transfer all or part of the Agreement to any person, company or business.
Art. 11 Applicable law
11.1 The Agreement is governed exclusively by Belgian law in Belgium. For the international sale of goods, BOSS reserves the right to rely exclusively on Belgian law or the Vienna Convention, at its discretion.
Art. 12 Jurisdiction
12.1 The Commercial Court in Ghent, Kortrijk division, or where appropriate the Peace Court in Waregem or Harelbeke or the Court of First Instance in West Flanders, Kortrijk division, has exclusive jurisdiction to take cognizance of any disputes, unless BOSS chooses to bring the dispute before the court of the Customer’s place of business or residence. The choice of forum is reserved solely for BOSS.
II. PROVISIONS REGARDING PURCHASE AGREEMENTS
Art. 13 Delivery of Sold Materials
13.1 If a partial delivery has already taken place and the Buyer refuses to accept further deliveries or if the Buyer makes further deliveries impossible, invoices relating to the goods already supplied shall become immediately payable, regardless of whether the goods are still in the possession of BOSS or in transit.
Art. 14 Sold Materials: transfer of risk and retention of title
14.1 Risk shall be transferred at the time the goods leave our warehouses.
14.2 Ownership of the Sold Materials shall not be transferred until the Purchase Price and Costs have been paid in full. Transfer of title shall therefore be suspended until this time. This retention of title shall be considered enforceable against any custodian, liquidator, debt counsellor or attaching party, including if the goods have already been partially processed or mixed.
Art. 15 Condition of the Sold Materials and indemnification by BOSS
15.1 Second-hand Sold Materials shall be received by the Buyer as found. As a result, BOSS is explicitly not liable for any failure by second-hand Sold Materials to comply with the applicable statutory European safety requirements.
Receipt of the second-hand Sold Materials by the Buyer at the time of delivery shall not constitute acceptance of the Sold Materials. The Buyer undertakes not to use the second-hand Sold Materials until he or she has adequately ensured that the second-hand Sold Materials meet the locally applicable conditions and requirements for use, that their installation is reliable and that the usage conditions are safe. The Buyer is responsible for taking the necessary measure to ensure that the second-hand Sold Materials meet the essential safety requirements at the time they are brought into use.
The Buyer must indemnify BOSS if the second-hand Sold Materials are found to have been brought into use prior to the necessary modifications, repairs and/or inspections in accordance with high standards and with a view to the safe functioning of the second-hand Sold Materials.
15.2 BOSS is not required to indemnify the Buyer if it emerges that:
15.2.1 The Buyer has made modifications or changes to the Sold Materials or has attempted to do so; or
15.2.2 The defects are the result of incorrect or abnormal use such as, but not limited to, use of the Sold Materials for purposes other than those for which they are reasonably intended, excessive burdens, (inexpert) application in a manner that is not in accordance with the instructions for correct use, assembly, maintenance, installation or use that is not in accordance with the technical or safety standards in force at the location where the Sold Material is used; or
15.2.3 The defects are not reported to BOSS in good time, in other words within the period specified above in Art. 3.3, in writing by registered mail; or
15.2.4 The documentation that accompanies the Sold Materials and that has not been provided by BOSS, including usage or operating instructions, safety symbols etc., is incorrect and/or incomplete; or
15.2.5 The Sold Materials have been used in combination with accessories or attachments that were not sold or supplied with the Sold Materials as appurtenances, or that are not intended to be used in combination with the Sold Materials.
15.3 The hidden defects identified are established in a contested manner. If the Sold Materials contain a hidden defect, it is explicitly agreed that BOSS, in accordance with its professional expertise and at its discretion, may either repair the Sold Materials or replace the Sold Materials, or grant a price reduction, or allow the termination of the Purchase Agreement with the reimbursement of the Purchase Price and the return of the Sold Materials. The Buyer is not entitled to claim any additional compensation. Replaced parts shall automatically become the property of BOSS for no consideration.
Art. 16 Complaint handling for Sold Materials - see separate Return Procedure
Art. 17 Cancellation of the order
17.1 Orders must be cancelled in writing. Cancellations are only valid where accepted in writing by BOSS. In the event of cancellation, a fixed fee of 15% of the order price shall apply.
III. PROVISIONS REGARDING HIRE AGREEMENTS
Art. 18 Condition of the Hired Materials
18.1 The Hired Materials shall be hired as found at the time of delivery.
18.2 Upon receipt, the Hirer must immediately carry out a normal inspection of the Hired Materials and check them for defects or deficiencies. Acceptance without immediate objection or without objection within the previously specified 24-hour period after delivery and first use of the Hired Materials covers visible defects and deprives the Hirer of its right to complain about visible defects at a later time.
18.3 BOSS must be made aware of any defects discovered during the hire period. BOSS indemnifies for a period of six (6) months against any hidden defects of the Hired Materials that prevent their use.
18.4 At the end of the hire period the Hirer shall return the Hired Materials to BOSS in the same condition as he or she received the Hired Materials.
18.5 Any damage to the Hired Materials identified upon their return, with the exception of normal wear and tear, shall be considered to have been caused by the Hirer and he or she shall therefore bear the resulting costs.
18.6 Maintenance and repair work can only be carried out by BOSS.
18.7 The Hirer is not entitled to claim compensation if the Hired Materials temporarily cannot be used.
18.8 Repairs that are proven to be necessary due to an act or omission on the part of the Hirer shall be carried out at the expense of the Hirer.
Art. 19 Obligations of the Hirer
19.1 The Hirer undertakes to:
19.1.1 Comply with the provisions of the Hire Agreement and all locally applicable regulations regarding the possession and use of the Hired Materials, including but not limited to the legal requirements concerning the use of personal protective equipment.
19.1.2 Use the Hired Materials with due care for their normal intended purpose.
19.2 The Hirer is not permitted to deposit, sublet or transfer as security, to third parties or otherwise, all or part of the Hired Materials in any way without the prior written permission of BOSS.
19.3 The Hirer is not permitted to make any changes to the Hired Materials or to remove markings from the device without the prior written permission of BOSS.
Art. 20 Replacement
20.1 BOSS is entitled to replace all or part of the Hired Materials with similar materials at any time.
Art. 21 Ownership of the Hired Materials and indemnification
21.1 If the Hirer is not the owner of the building or site where the Hired Materials are located or if he or she ceases to be the owner, he or she shall inform the owner or new owner in writing that the Hired Materials are not his or her property.
21.2 If a third party lays claim to the Hired Materials, the Hirer shall fully indemnify BOSS against any principle, costs, interest and impairment BOSS has incurred in respect of the total or partial loss, reduced use or loss of enjoyment of the Materials.
Art. 22 Subrogation
22.1 The Hirer authorises BOSS to perform or arrange for the performance of all acts, and to collect any compensation, arising from damage caused to the Hired Materials at the Hirer’s expense. The Hirer therefore hereby assigns all its rights vis-à-vis third parties that are responsible for the damage caused to the Hired Materials.
Art. 23 Duration of the Hire Agreement
23.1 BOSS may terminate the Hire Agreement immediately and automatically by registered letter, and without any entitlement to compensation on the part of the Hirer:
23.1.1 In the event of serious damage to the Hired Materials.
23.1.2 In the event of theft or loss of the Hired Materials.
23.1.3 If the maintenance and/or repair costs to be borne by BOSS under this or any other Hire Agreement are considerably less favourable than BOSS could have reasonably expected on entering into the Hire Agreement.
23.1.4 If the Hirer fails to meet the obligations arising from the Hire Agreement.
Art. 24 Responsibility, liability of the Hirer
24.1 The Hirer shall bear the risks and liability in respect of the Hired Materials from the time the Hired Materials are made available to him or her until the time the Hired Materials are effectively returned.
Art. 25 Return of the Hired Materials
25.1 The Hired Materials must be returned in a perfect state of repair, in good working order and together with all accompanying documentation.
25.2 Following termination of the Hire Agreement, BOSS shall inspect the Hired Materials for damage and defects within two weeks and produce a damage report where applicable. If the Hirer is found to have damaged the goods, BOSS shall recover all or part of the damage from the Hirer.
Art. 26 Complaint handling for Hi