Terms and conditions

~General terms and conditions of sale

1. General

BV Verhoest Marc, with registered office at Moorseelsesteenweg 163, 8800 Roeselare, registered on the Crossroads Bank for Enterprises under number 0433.407.678 (“Verhoest”), has as main activity the manufacture of agricultural machines and the production of bespoke products according to the requirements of its professional buyers.

Unless agreed otherwise in writing by the parties, the current general conditions (“GC”) apply to each offer, each offer and each order confirmation, and to each agreement between Verhoest with respect to a professional buyer (“the Buyer”). By placing an order, the Purchaser declares to be in agreement with the content and the applicability of these GC and the language in which they are drawn up, he acknowledges beforehand to be familiar with them, and he explicitly waives the application of his own general conditions.

Verhoest can change the current GC at all times, and such changed conditions will apply to the first order after notification of the changes to the Buyer.

When Verhoest decides not to enforce certain clauses from the GC, this by no means waiving the clause or the GC in their entirety, considering such a waiver must be confirmed explicitly in writing.

2. Orders

All offers from Verhoest are legally valid for a period of thirty (30) days subject to agreement otherwise between the parties. The provisions specified therein only apply on the condition that the offer has been fully accepted by the Buyer.

An order is only valid and binding for Verhoest when Verhoest has confirmed the order (by order confirmation) in writing. Verhoest is entitled to refuse orders, for example if the Buyer still has outstanding debts payable to Verhoest.

After confirmation by Verhoest an order cannot be changed nor cancelled. Verhoest can however explicitly and in writing permit that:

• A change in the order is made, whereby Verhoest does however reserve the right to delay its initial delivery period as a result of the change; apply a price increase in the event of an increase in the cost of material and/or labour based on objective elements in accordance with article 7;
• An order by the Buyer is cancelled subject to the payment by the Buyer of a penalty of a minimum of 20% of the total price of the order, without prejudice to the right of Verhoest to claim a higher payment if the actual damage suffered is greater.

A request to change the order is only taken into consideration if this is mentioned in writing to Verhoest at email address: [email protected].

Any negotiations concerning an adaptation of an order can by no means affect the carrying out of the (original) agreement between the parties, and gives neither party the right to suspend the execution of the agreement.

3. Delivery

Unless stipulated otherwise in a written agreement between the parties, the delivery of goods takes place “Ex Works” (according to the latest version of the Incoterms as drawn up by the ICC) at the registered office of Verhoest. The risk of loss and damage to the goods is transferred to the Buyer in conformity with these Incoterms. Verhoest is under no circumstances, even if the transporter was selected by Verhoest, liable for the loss of or damage to the goods, so in such cases the Buyer must address the transporter or his insurer.

The communicated delivery periods, even if in an order confirmation, are always indicative and stipulated in good faith but not binding. With non-compliance with a delivery period, damage compensation or cancellation can under no circumstances be claimed by the Buyer. Verhoest reserves the right to suspend delivery until full payment by the Buyer of due amounts of whatever nature.

If the Buyer or person acting in the name of the Buyer is not present at the agreed delivery address and/or at the specified time, or if delivery is impossible, from the 15th day after the initial delivery date Verhoest is entitled by right and without prior notice of default to a fixed (storage) payment of 12.00 euros per m³ net a day, without prejudice to the right to claim a higher payment if the actual damage suffered is greater.

If the Buyer refuses to collect the goods on the initial delivery date, from the initial delivery date the purchase price becomes payable by right and without prior notice of default. The Buyer can then also only take receipt of the goods when he has paid all amounts due to Verhoest of whatever nature (and this including the abovementioned payment).

Deliveries (and invoicing) of goods in different parts are possible, unless otherwise agreed and to the extent these goods have an independent value, and can give no rise to complaints.

If delivery takes place at the Buyer, he must provide a space for this that can function as a loading space for a heavy duty vehicle. This space must therefore be sufficiently large and have a sufficiently strong ground surface. If this space is not provided by the Buyer so delivery cannot take place, the Buyer bears all costs associated with this, being (not limited to) the transport costs paid by Verhoest (to the extent these would be paid by Verhoest) and the storage costs until delivery is made possible by the Buyer. All damage caused by the unavailability of the space described above is a responsibility of the Buyer. Verhoest can under no circumstances be held liable in the case of damage to the surface or other property of the Buyer if the Buyer has provided no suitable space.

4. Non-conformity

The Buyer or person acting in his name must verify the nature, the quantity and the good condition of the goods on receipt. Under penalty of invalidity the Buyer must submit all necessary remarks concerning the conformity of the goods and/or visible defects by registered mail to Verhoest within 48 hours of receipt of the goods, and in any case before use, processing or (on)sale of the goods. This notification must include photos that provide unmistakable proof of visible defects and/or non-conformity. The Buyer must also submit all claims due to visible defects and/or non-conformity under penalty of invalidity within a month of delivery of the goods. Any (on)sale, use or processing of the goods removes the right of the Buyer to submit any notification of visible defects and/or non-conformity. Verhoest is not liable for defects as a result of negligent storage of the goods by the Buyer. Notification submitted by the Buyer in no way allows the Buyer to not fulfil its payment obligations with respect to the goods supplied.

If the Buyer does not report visible defects and/or non-conformity (in good time), he is considered to have accepted the goods.

5. Hidden defects

Hidden defects are understood to mean defects in the goods sold that, although already existing at the time of the purchase, were not visible to the Buyer on delivery and make the goods unsuitable for the use intended by Verhoest (“Hidden defects”). Verhoest indemnifies the Buyer against hidden defects under the legal provisions and the following conditions:

• The guarantee only applies to goods that legitimately became the property of the Buyer;
• The guarantee only applies to goods that have been solely and fully produced and sold by Verhoest;
• The guarantee is limited to the replacement or repair of the defective parts without the Buyer being able to claim damage compensation and this irrespective of the cause;
• The guarantee covers no defects or theft as a result of transport or storage at the Buyer;
• The guarantee covers no abnormal use of the goods or use that does not correspond to the instructions for use included in the manual provided to the Buyer on purchasing;
• The guarantee covers no faults that are the consequence of inappropriate maintenance:
• The guarantee covers no performance levels required by the Buyer;
• The guarantee period is limited to one (1) year after bringing into use. It is the responsibility of the Buyer to demonstrate the date of bringing into use. Should the Buyer fail to demonstrate that the goods have been in use for less than one (1) year, the goods will be considered as brought into use on the date of delivery;
• For the “caterpillars” machine part the guarantee period is limited to six (6) months from bringing into use. It is the responsibility of the Buyer to demonstrate the date of bringing into use. Should the Buyer fail to demonstrate that the goods have been in use for less than six (6) months, the goods will be considered as brought into use on the date of delivery;
• Verhoest is notified of hidden defects by registered mail sent within 48 hours after observation of the hidden defect and defects must be evidenced by photographs that demonstrate the hidden defect. In the absence of this no action will be taken by Verhoest.

6. Returns/repairs

In the case of a non-compliant delivery, a visible or hidden defect is established by Verhoest and if the conditions for a response under the guarantee are met:

• The Buyer can only claim the replacement or repair of the goods that were non-compliant and/or parts that are required to remedy the defects, without the Buyer having any right to damage compensation or the dissolution of the agreement.
• Goods can only be returned to the extent a repair on-site is not possible or would take an unreasonably long period of time. The costs of returning the goods or sending parts to remedy the defect are at the expense of Verhoest, but no goods whatsoever may be returned by the Buyer without the prior and written agreement of Verhoest. This agreement can by no means be regarded as admission of liability by Verhoest. Only a transporter selected by Verhoest is permitted to return goods. Failure to comply with the above-mentioned points results in the Buyer losing the right to a guarantee.
• Costs associated with the repair, comprising but not being limited to the accommodation and/or transport costs of the repairer and the working hours of the repairer are paid by the Buyer. The guarantee only concerns new parts requiring repair. Only a repairer selected by Verhoest is permitted to carry out the repair. Should this provision be disregarded the Buyer loses the guarantee rights.

Any complaint of whatever nature does not delay the payment obligations of the Buyer, and does not authorise the Buyer to refuse the delivery of goods that are the subject of the complaint.

Verhoest reserves the right to suspend its obligations under this article until full payment by the Buyer of due amounts of whatever nature.

7. Price

The prices and rates applicable to the order are those applying at the time of the placing of the order by the Buyer as provided for in article 2. The prices are net, without discount. Any discount is based on the full offer/order and only applies with full acceptance of this by the Buyer. With the return of (a number of) goods Verhoest has the right to cancel any discount.

Verhoest reserves the right to increase the agreed prices, also after the date of written order confirmation, in the event of an increase in the costs of material and/or labour based on objective elements (for example price increase for one or more elements of the production chain and/or in the event of price increases for the (raw) materials) that the goods require). Such a price increase by Verhoest will always be limited to a maximum amount of 80% of the end price and will only relate to the share represented by the material and/or labour in the end price. The changed prices are applicable as soon as they are communicated to the Buyer. No document presented by the Buyer whatsoever can result in any change to the prices or rates. The prices are shown without taxes, delivery costs and packaging costs. Prices are specified net and without discount and are payable according to the methods referred to below.

8. Payment

Unless agreed otherwise between the parties each invoice is payable in cash and without discount to the registered office of Verhoest. The invoices are payable on the due date. Should an invoice be disputed, each objection to an invoice must be sent by registered mail to the above address within eight calendar days of receipt of the invoice. This objection must be reasoned to be valid.

Should doubts arise at Verhoest at any time concerning the creditworthiness of the Buyer, including due to actions (legal action) against the Buyer, or with no or late payment of one or more invoices, in the event of legal reorganisation and/or any other demonstrable events that may affect the confidence of Verhoest in (possible) proper compliance by the Buyer with the obligations entered into, Verhoest explicitly reserves the right to suspend deliveries, require prior payment from the Buyer for deliveries still to be made and/or request (other) guarantees or surety, even if the goods have already wholly or partly been sent.

In the event of non-acceptance of the Buyer of the abovementioned conditions drawn up by Verhoest without the Buyer offering a sufficient solvency guarantee, Verhoest is entitled without prior notice of default to dissolve the agreement with the Buyer at the expense of the Buyer, without legal action and without damage compensation becoming payable.

9. Late payment

When the invoiced amount has not been fully paid by the Buyer on the due date:

• interest of 12% per year will become payable by right and immediately by the Buyer up to the date of full payment.
• with default of payment, eight calendar days after notice of default the Buyer becomes owing fixed damage compensation of 12% of the total price, with a minimum of 250.00 euros, without prejudice to the right of Verhoest to claim higher damage compensation if its actual damage suffered is greater.
• Verhoest can recover its costs of collecting the outstanding debt from the Buyer.

The abovementioned amounts are calculated based on the price including taxes. With non-payment of an invoice when due, any suspension of payments permitted by Verhoest is no longer applicable, and all other not yet due sums claimable by Verhoest from the Buyer are by right and without notice of default due and payable.

Should the Buyer not comply with its obligations, including payment of the price of the goods, Verhoest reserves the right without legal action and without prior notice of default to suspend the execution/production/delivery of all current orders, or dissolve the agreement without the right to damage compensation on the part of the Buyer, this however without prejudice to (any) other rights which Verhoest may have including the right to damage compensation from the Buyer.

10. Reservation of ownership

The goods remain the property of Verhoest up to the time of full payment of the invoice. This provision is applicable to all claims that Verhoest has with regard to the Buyer and all goods purchased from Verhoest in the possession of the Buyer.

Hence the Buyer may not sell goods on for which the price has not yet been fully paid. At no time whatsoever may the Buyer use unpaid goods purchased from Verhoest as surety. Any action contrary to that stipulated in this article does not affect the rights of Verhoest.

In the event of default of payment, Verhoest is entitled a request an inventory of all its products sold to the Buyer to allow the recovery of these goods. The Buyer binds itself to immediately do everything required to this end, and gives Verhoest the right to enter its storage spaces to recover the goods.

If the Buyer wishes to accommodate the goods at a third party (for example the rental company owning immovable property rented by the Buyer), the Buyer will in any event inform Verhoest of this beforehand. This notification must include the identity and the address of the third party.

All costs incurred for the repossession of the goods as well as the costs of their recovery must be paid by the Buyer.

11. Liability

Verhoest is under no circumstances liable if damage is caused that is not only attributable to a defect in the product, but also due to a fault or negligence on the part of the Buyer or person for whom the Buyer is responsible. Except in the case of deception or a deliberate error, Verhoest is under no circumstances liable for, and Verhoest cannot be held to compensation to the Buyer for any form of intangible, indirect or consequential damage, including but not limited to, loss of profit, turnover loss, loss of income, production loss or production stoppage, administration or personnel costs, an increase in general expenses, missed opportunities, loss of clientele or any amounts receivable from third parties (including customers of the Buyer).

Under no circumstances can Verhoest be bound to compensation for damaged harvested products, or for any damage to the machines, if the harvested products display abnormal characteristics. Accordingly, Verhoest cannot be held liable if the harvested products are exceptionally hard or porous as a result of the ground in which they grew, so damage originates to the machine or to the harvested product itself, unless the Buyer can demonstrate that at the time of placing the order he informed Verhoest in writing that the products to be harvested display specific characteristics and that the goods to be delivered must be modified in line with these characteristics.

Should there be any case of liability on the part of Verhoest, Verhoest can in any case only be bound to damage compensation limited to the invoice value of the erroneous delivery. The restriction and exclusion of liability in this article is also applicable in the event of a serious fault on the part of Verhoest, as well as a deliberate error committed by its staff, employees and/or representatives with the carrying out of their professional activities.

In the event of claims from third parties as a result of incorrect use by the Buyer of the goods supplied or any other claim for which Verhoest is not responsible, the Buyer will full indemnify Verhoest.

12. Act of God

Act of God is understood as any event beyond the control of the parties that they could not have reasonably foreseen nor could have avoided, that makes compliance with their contractual obligations impossible.

Situations equated with Act of God that do not allow Verhoest to comply with its obligations: actions by the authorities, explosion or civil unrest, telecoms disruption (including “denial of service" or an attack and similar unavailability of internet connections), a general or partial strike of its personnel or its usual suppliers and transporters, fire, flood, war, technical failures in the production line, epidemics, pandemic (such as but not limited to COVID-19), road blockages or obstructions, the loss of the electricity or gas supply or any other cause that prevents deliveries by Verhoest.

In such circumstances Verhoest will notify the Buyer concerning the situation of Act of God and of the immediate suspension of the obligations of the parties by right and without right to damage compensation. Should the Act of God on the part of Verhoest continue for a contiguous period of six (6) months, the agreement will be dissolved without any right to damage compensation on the part of the Buyer.

13. Severability

If one or more of the clauses in these GC is declared null and void, this invalidity under no circumstances affects the other provisions of the GC nor the agreement in its entirety, and the GC still apply with the exception of the void, invalid or unenforceable provision or part of a provision. In this case, the parties will negotiate in good faith to replace this invalid or unenforceable provision by a legally valid and enforceable clause that corresponds as closely as possible to the intention and the meaning of the original provision.

14. Intellectual property

Each technical document, technique or good to which intellectual rights of Verhoest apply must be returned to Verhoest on first request and cannot be sold, copied, used or commercialised without prior written permission from Verhoest.

15. Applicable law and competent lawcourt

The contractual relationship between Verhoest and the Buyer is exclusively governed by Belgian law. The application of the Vienna Sales Convention is explicitly excluded.

Any dispute between Verhoest and the Buyer will be exclusively brought before the law courts of Ghent, department Kortrijk.