Terms and conditions

General conditions

1. Applicability

1.1 These general terms and conditions (hereinafter "General Conditions") apply to agreements of purchase and sale concluded between the seller and the buyer (hereinafter "Agreement"). These General Terms and Conditions are an integral part of the Agreement.

Seller means the party delivering the goods, namely Portapivot BV with its registered office at Nijverheidsweg 32B, 2240 Massenhoven, Belgium and registered in the Crossroads Bank of Enterprises under number 0733.702.159 (hereinafter: "Seller"), with e-mail
address info@portapivot.com.

Buyer means the customer who purchases the goods (hereinafter "Buyer").

The Seller and the Buyer are collectively referred to as the "Parties."

1.2 The Buyer makes an offer to contract to the Seller via the placement of an order (hereinafter "Order").

The Agreement is concluded only when the Seller accepts the Buyer's offer. After the Seller's acceptance, the Seller sends the Buyer an invoice (hereinafter "Invoice").

Buyer must notify Seller in writing within 24 hours of receipt of the Invoice of any inaccuracy in the Invoice, including any inconsistency between the Order and the Invoice. This written notice may be by e-mail. In the absence of notice from Buyer, a Contract is established between the Parties for the delivery of the goods as described in the Invoice

2. Quotations

2.1 A quotation from the Seller can under no circumstances be considered as an offer that only needs to be accepted by the Buyer for an Agreement to be established between the Parties.

2.2 Unless explicitly stated otherwise, quotations remain valid for sixty (60) calendar days from the date on which they were made and become invalid from the sixty-first calendar day.

2.3 If special costs beyond the Seller's control cause the quoted prices to increase, such as increases in taxes or duties on the products to be delivered, increases in freight prices, increases in the prices of basic products or raw materials, increases in wages as a result of statutory provisions or national or sectoral collective labour agreements, currency fluctuations, and so forth, the Seller is entitled to implement a proportional price increase by means of a simple notification, which can be communicated in any oral or written form. A deviation from the price quotation is also possible if certain facts communicated by the Buyer and necessary for determining the price prove not to correspond with reality.

3. Cancellation of orders

3.1 The Buyer who wishes to cancel his order must, under penalty of nullity, do so in writing before receipt of the Invoice. Cancellation after receipt of the Invoice is not possible.

3.2 In the event of cancellation by the Buyer before receipt of the Invoice, the Buyer shall owe the Seller an amount equal to 10% of the total sales price, with a minimum of 500 euros, as lump-sum and irreducible damages, with the Seller's right to prove higher damages, if applicable.

4. Price

Unless otherwise agreed, all prices are in effect:
a. exclusive of VAT, fees and/or other charges or taxes;
b. including cost of packaging.

5. Processing

5.1 The Seller uses two processing periods.

For ready-to-ship goods, the processing period is three (3) working days (for packaging) before they can be picked up by DHL Express or the carrier of the Buyer's choice.

For custom-made goods, the processing period is a delivery time of twenty (20) working days (for production and packaging) before they can be collected by DHL Express or the carrier of the Buyer's choice.

These processing periods are an obligation of means. This means that the Seller makes reasonable efforts to meet these deadlines but cannot be held liable by mere failure to process on time.

Under no circumstances will the Seller be liable to the Buyer because of a late processing or delivery when such delay is due to circumstances beyond the Seller's will and control. This includes when the Seller is faced with delays in deliveries by its suppliers.

5.2 If any delay or postponement in the processing or delivery of goods is due to the Buyer, then the Buyer will be responsible for all resulting additional costs, such as, for example, storage costs.

5.3 The Seller reserves the right to make partial deliveries.

5.4 If a Party refuses the delivery of the purchased goods, does not pay the invoice or otherwise fails to fulfil its obligations to the other Party, the first Party may opt for dissolution of all or part of the contract subject to damages or otherwise for forced performance of the contract. It is sufficient for the dissolving Party to notify the other Party by registered letter of its desire to dissolve and the reasons for doing so. Any dissolution of the agreement will occur by operation of law and without prior notice or judicial intervention.

6. Risk

Unless otherwise agreed, risk of destruction of the goods passes to the Buyer at the time of delivery. If Buyer chooses to have the goods shipped, delivery, shipping, insurance, customs and taxes are Buyer's responsibility. The Seller works exclusively with DHL Express for shipments.

7. General liability regulation.

7.1 The Parties shall in no way be liable for any indirect or consequential damages including (i) loss of revenues, or actual or anticipated profits or savings, (ii) loss of business or contracts, or customer or reputational damage, (iii) claims by Buyer's customers or third parties. This limitation applies in any case and regardless of how such damages or losses were caused: foreseeable or not, in contract or tort, negligence, breach of a statutory provision, strict liability, infringement of intellectual property rights, misrepresentation, or otherwise.

7.2 In any event, the amount to which the Parties may be held liable shall not exceed the invoice amount.

7.3 No provision of these Terms and Conditions shall release the Seller for:
- His wilful fault or that of a person for whom he must vouch;
- His serious fault or that of a person for whom he must vouch; and
- His fault or that of a person for whom he must vouch, when that fault affects the life or physical integrity of a person.

7.4 Article 6.3 of the Belgian Civil Code is expressly excluded, with the consequence that any form of extra-contractual liability related to the contracts between the Parties cannot be invoked, except when the damage is the result of an impairment of physical or psychological integrity or of an error committed with the intent to cause damage. The recovery of damages caused by the non-performance of a contractual obligation valid between the Parties shall be governed, within the legal limits, exclusively by the rules of contract law, even if the event at the origin of the damages also constitutes a tort. The Buyer hereby waives and excludes the assertion of all extra-contractual liability claims relating to the matters of the present Agreement against employees, officers, directors, agents, delegates, sub-delegates or subcontractors of the Seller, with the exception of extra-contractual liability claims for damages resulting from an impairment of physical or psychological integrity or for damages caused intentionally.

8. Liability for goods delivered

8.1 This Article governs the Seller's liability for goods delivered and thus applies when the Seller delivers goods to the Buyer. This Article applies without prejudice to Article 7 of these General Terms and Conditions.

8.2 At the time of delivery, the Buyer inspects the goods for visible defects. He also checks that the goods and quantity as described in the Invoice were delivered.
The Seller shall indemnify the Buyer for visible defects and incorrect deliveries only if the Buyer notifies the Seller within a period of two working days counting from the delivery by registered letter, with a substantiated statement of the reasons for the notification and a well-founded summary of visible defects or incorrect elements.

8.3 The Vendor shall only indemnify the Buyer for hidden defects if the Buyer notifies the Vendor thereof within a period of two years counting from the delivery and five (5) working days counting from the discovery of the hidden defect by the Buyer. This notification must be made by registered letter, under penalty of nullity. With this notification, the Buyer shall provide supporting evidence. This article applies without prejudice to the Buyer's obligation to institute legal proceedings on the basis of hidden defects within a short period of time in accordance with article 1648 of the old Civil Code.

8.4 If the Seller is liable for indemnification in accordance with Article 8.3, the Buyer may initially claim only that the Seller repairs the good. The Buyer may have the good repaired by a third party only after the express and written authorization by the Seller. In the absence of such authorization, the Seller shall not reimburse the repair costs.
If the repair of the good is not possible or the cost of repair exceeds the invoice amount, the Buyer may claim replacement of the good.
Only if replacement of the good is not possible or the cost of replacement exceeds the invoice amount, the Buyer may claim rescission or price reduction in accordance with common law.

8.5 The Seller shall not be liable for any defects in the goods sold of which the Buyer was aware at the time of entering into the Contract.

8.6 The indemnifications shall only be granted if the Buyer has stored the goods competently and treated them according to the rules of the art (among other things, protected them from moisture and heat and used them exclusively indoors). The burden of proof in connection with competent storage and treatment in accordance with the rules of the art shall lie with the Buyer.

8.7 The indemnity provision under Article 8.3 shall not apply if the defects have arisen as a result of the Buyer's failure to store the goods competently and treat the goods according to the rules of the art (including protection against moisture and heat). In this case, the Buyer is responsible for the damage. The Buyer must prove that he stored and handled the goods professionally and according to the rules of the art.

8.8 The indemnification provision under Article 8.3 applies only to hidden defects, which presupposes a certain degree of seriousness. Mere aesthetic damage is not considered a hidden defect for which the Seller must indemnify the Buyer.

8.9 Under no circumstances will the Seller be liable for any damages incurred as a result of the Buyer's installation of the goods with its customers. It is the sole responsibility of the Buyer to verify that the goods are suitable for installation at its customers' premises. The Buyer shall indemnify the Seller for any claim brought by a customer of the Buyer against the Seller in this regard.

9. Return Policy

9.1 If the Buyer wishes to return ready-to-ship goods (not custom-made goods), he must notify the Seller's customer service department by e-mail within fourteen (14) business days of delivery. If the Buyer fails to make this notification within the applicable period, this will be considered an absolute and unconditional waiver of his right to return the goods.
9.2 The Seller will only take back goods that are in their original, new, unopened and unused condition and packaging; other goods are not eligible for return.
9.3 If the return is due to a defective or damaged product, the Seller will reimburse the Buyer for the return shipping costs, provided that the Buyer uses a shipping service with track-and-trace functionality and insurance of the shipped goods. If the return is not the result of a defective or damaged product, the Buyer must pay the return shipping costs itself.
9.4 If Buyer wishes to return custom-made goods, Buyer must notify Seller's customer service department by email within five (5) business days of delivery, providing the unique order code. The Buyer has no right to return custom-made goods. The Seller agrees to make every effort to satisfactorily assist the Buyer with the goods the Buyer wishes to return, but this is not an obligation of result. The Seller will only accept returns of custom-made goods that are defective; for example, the Seller will not accept returns if the problem is due to misstatement or miscalculation of manufacturing dimensions, which are the Buyer's responsibility.

10. Billing and payment

10.1 Each invoice is deemed accepted by the Buyer in any case from the payment and, in case of non-payment, eight calendar days after shipment, unless the Buyer submits a detailed objection to the invoice by registered letter within that period, enclosing all relevant supporting documents. Payment must be made in euros. All costs of payment shall be borne by the Buyer.

10.2 Unless otherwise agreed, each invoice from the Seller must be paid in full in advance no later than the due date. Notwithstanding this, the Seller and Buyer may, for example, expressly agree that the invoice must be paid within 30 calendar days from the invoice date.

10.3 If the Buyer orders goods and/or services through the website (www.portapivot.com) and opts to pay by bank transfer, the Buyer must pay for the goods and/or services, as listed in the Order, within 10 business days from the date of the Order. If Seller receives payment within that period, Seller will send Buyer an invoice for satisfied. If the Seller does not receive payment within that time period, the order will automatically be cancelled.

10.4 If the Buyer fails to pay the Seller's invoices when due, the Seller shall be entitled to rescind the agreement extrajudicially in accordance with the provisions of Article 5.4 of the General Conditions, or to suspend its further performance (the so-called ‘exception of non-execution’), always without being obliged to pay any damages, and while retaining all other remedies, including claiming the outstanding payments and claiming damages.

10.5 Any amount owed by the Buyer to the Seller which has not been paid on the due date shall automatically and without notice of default accrue interest at the special rate stipulated in the Law of 2 August 2002 on combating late payment in commercial transactions. In addition, on top of the interest and judicial collection costs, a lump sum compensation will be due by right, equal to 15% of the amount due, with a minimum of 250 euros. The Vendor expressly reserves the right to claim compensation for additional damages and recovery costs on condition that he proves these higher damages.

10.6 The Buyer shall pay all amounts due by it in full and on time, without the possibility of making any deferment, suspension, offset or counterclaim against the Seller, whether based on breach of contract, fault (including negligence), violation of legal obligations or any other reason whatsoever.

10.7 If the Buyer is declared bankrupt or is placed in judicial reorganization or liquidation, or if its bankruptcy, judicial reorganization or liquidation is applied for or claimed, or if a provisional administrator is appointed over the Buyer, or if it becomes notoriously insolvent, the Seller shall have the right immediately to rescind all or part of the contract and to take back the goods delivered and not yet paid for, without prejudice to its right to compensation.

10.8 In case of non-payment of an invoice on the due date, all other outstanding invoices also become immediately and automatically due and payable, even if they have a different object.

11. Intellectual property rights and confidentiality

11.1 All intellectual property rights (including trademarks, drawings and models, copyrights, know-how, database rights) concerning the goods sold by Seller (e.g., sketches, drawings, descriptions, models, and calculations) shall remain the property of Seller, unless otherwise agreed in writing.

Without Seller's prior written consent, Buyer may not disclose or reproduce any of these data or works whether in modified form or otherwise.

11.2 Nor shall the Buyer use, reproduce, show or disclose any data concerning the methods of manufacture or construction used by the Seller, except to the extent strictly necessary for the work in question or with the prior express written consent of the Seller.

12. Applicable law and disputes

12.1 These Terms and Conditions and the underlying agreement are governed by Belgian law, to the exclusion of Belgian private international law and the UN Convention on Contracts for the International Sale of Goods ("Vienna Sales Convention").

12.2 All disputes concerning the origin, performance or validity of this Agreement, including extra-contractual or pre-contractual disputes, shall belong to the exclusive jurisdiction of the courts of the judicial district of Antwerp

13. Notifications

All notices between Parties shall be by registered mail with return receipt requested to the registered office of the Party to receive the notice, except where otherwise expressly stated and unless otherwise agreed by the Parties.

If the Agreement and/or the General Conditions expressly provide that notification may be made by e-mail, then the Buyer, as the case may be, must use the e-mail address of the Seller specified in Article 1.1 of these General Conditions.

The Seller will use the Buyer's email address known to it.

Each communication, as the case may be, shall be deemed to have been given one business day after the date of receipt notification or one business day after the date of sending the e-mail.

Parties should notify their change of address in accordance with this provision.

14. Other important clauses

14.1 The Agreement and the rights and obligations arising thereunder for Buyer and Seller are, except as expressly provided otherwise, not assignable, directly or indirectly, without the prior written consent of the other Party.

14.2 The Agreement contains the entire agreement between the Parties relating to the subject matter of the Agreement and supersedes all prior negotiations and agreements between Buyer and Seller having the same subject matter. Where a prior agreement between the Parties applies to this Agreement it will be expressly stated.

14.3 Unless otherwise expressly provided in the Agreement, the Agreement may be amended or modified only by written agreement signed by duly authorized representatives of both Parties.

14.4 The Parties are satisfied that the Agreement is binding and valid in all its aspects.
Should nevertheless one or more provisions of the Agreement be found void or invalid, such voidness or invalidity shall not affect the validity of the remaining provisions and of the remaining part of the Agreement.
Provisions that would be affected or invalidated by nullity remain binding for the part of them that is legally permissible.
The Parties undertake to replace, where appropriate, the provisions alleged to be void or invalid with valid provisions that come as close as possible to the intention of the Parties.

14.5 Even if the Parties delay in enforcing this Agreement, the Parties may still later enforce it. No delay in enforcement of this Agreement by the Parties shall be construed as a waiver of rights.

14.6 Only these General Terms and Conditions shall govern the Agreement. The Buyer's general terms and conditions will not apply unless the Seller expressly accepts them in writing.

14.7 This Agreement has been drafted in a balanced manner and reflects the will of the Parties. Buyer and Seller declare that no provision of this Agreement creates an apparent imbalance between the rights and obligations of the Parties.

14.8 Unless otherwise provided, the term "working day" in these General Conditions is to be understood as any calendar day, excluding Saturdays, Sundays and Belgian legal holidays.

14.9 In case of a difference between the different language versions of these Terms and Conditions, the Dutch language version shall prevail.