The present general conditions (hereinafter “GC”) shall apply to all sales contracts concluded by the company NV Moments Furniture, with registered offices in 8770 Ingelmunster, Deefakkerstraat 2, entered into the register of the Crossroads Bank for Enterprises under the number 0423.530.605, with a professional buyer (hereinafter the “Buyer”). The Buyer’s own general conditions shall explicitly be excluded.
Every Buyer placing an order, as well as every distributor, shall be fully informed of these GC prior to the conclusion of a unique purchase agreement. Moments Furniture reserves the right to deviate from the present GC. Nonetheless, such deviation shall be valid only when it has been established in writing and signed by Moments Furniture prior to the order.
The present GC shall be deemed to have been accepted by the Buyer when the latter places an initial order to which the present GC have been appended or after he expressly has signed them. Moments Furniture shall be entitled to change the GC at any moment and without prior notice. The changed GC shall affect future orders only and apply to every commercial relationship between the parties as of their dispatch by Moments Furniture following receipt of a new order by the Buyer.
Whenever Moments Furniture decides to waive certain clauses in the GC, this waiver is not to be interpreted as the company’s subsequent relinquishment of such clauses or of the totality of the GC.
All price offers by Moments Furniture shall remain valid for a period of 90 days when the Buyer is located, and the delivery is to take place, within Belgium, and for a period of 30 days in case the Buyer is located outside the Belgian territory, barring a provision to the contrary. The validity of the prices quoted in the offer is predicated on its being accepted in its entirety.
In order to be considered valid by Moments Furniture, every order needs to be placed via an order form provided by the company, duly signed by the Buyer, unless in case of written confirmation by Moments Furniture that the order has been placed by some other method and duly accepted, hence, validly processed. The signing of the order form or any other form of confirmation of agreement of a price offer submitted by Moments Furniture to which the present GC have been appended shall likewise confirm the unconditional acceptance of the present GC.
Moments Furniture can only be considered committed to execute an order in case it has issued a written order confirmation to that effect. Moments Furniture shall not be held to acceptance of any order and be entitled to refuse orders, for instance, in cases where the Buyer still has debts outstanding vis-à-vis the company.
Each and every order placed by the Buyer constitutes the latter’s irrevocable intent to purchase. Once accepted by Moments Furniture, an order can no longer be adjusted or cancelled. Nonetheless, Moments Furniture may expressly and in writing agree to:
- a change in the order, with proviso that Moments Furniture reserves the right to postpone its original delivery date in consequence of that change;
- the cancellation of an order by the Buyer with proviso of payment by the latter of a penalty of minimum 50% of the total order price, and without prejudice to Moments Furniture’s right to claim a higher amount should the latter’s loss and/or damage suffered prove to exceed the fixed penalty of 30 % of the total price.
A request for change of the order shall only be considered when notified to Moments Furniture in writing to the e-mail address stated in the contact date as provided by the latter on the price offer or order confirmation.
Any changes to the order approved by Moments Furniture shall result in an automatic extension of the delivery’s target date stated in article 3 conform to the latter’s estimation. Moments Furniture shall in no wise be held liable for alleged loss and or damage because of extensions of the target dates arising from changes in the order requested by the Buyer. In the event of changes to the order, the initial target dates can only be retained with the express approval of Moments Furniture, and this invariably with proviso that the Buyer shall assume all additional costs necessary to enable Moments Furniture to still meet the initial target dates.
Negotiations concerning changes to the order can in no wise affect the fulfilment of the initial purchase agreement. Neither party shall be entitled to suspend the fulfilment of the initial order or any commitments arising therefrom (such as payment for goods delivered) as a result of negotiations concerning changes to the order.
The order confirmation by Moments Furniture may include a target delivery date. However, this date is purely indicative and provided by way on information only. Any postponement of delivery terms shall in no wise be grounds for any form of compensation to the Buyer, nor shall any such postponement be grounds for cancellation of the order.
In the event of a sale and delivery to a Buyer located within Belgium, the risk of loss, theft, and damage of and to the goods shall be transferred to the Buyer as of the moment of their delivery to the latter’s premises. In this case, the delivery shall be considered completed at the time said goods are delivered to the Buyer and placed on the latter’s premises by Moments Furniture.
In the event of a sale to a Buyer located outside Belgium, the goods shall be sold “Ex Works” (INCOTERMS® 2010): the costs and risks associated with their transport shall be borne by the Buyer. Moments Furniture shall not be accountable for any consequence of the transport, theft, destruction, or any other risk whatsoever, even in case the carrier was selected by Moments Furniture.
The initial delivery date can, at the Buyer’s request, be postponed up to three weeks. Should the Buyer request a further postponement after that term, he shall become liable to pay a storage charge of 1 EUR per m² for every week of postponement. Furthermore, the Buyer shall be required to settle the full pre-payment of the order.
The Buyer who refuses to collect the goods ordered or refuses acceptance of their delivery shall be liable to pay a storage charge of 1 EUR per m² per week after the 1st day following the date of the initially scheduled delivery. All risks of fire, theft, or any other damage shall be assumed by the Buyer as of the date of the initially scheduled delivery. In the event that the Buyer refuses to collect the ordered goods on the date of the initially scheduled delivery, Moments Furniture shall be entitled to claim immediate payment of the purchase price as of that date, after which the Buyer shall be allowed to take possession of the goods only on payment to Moments Furniture of the full purchase price, as well as all due storage costs and any possible arrears interests and compensatory indemnity. Should the Buyer fail to collect his ordered goods or refuse delivery of the goods during 30 days following the scheduled delivery date, Moments Furniture shall place the Buyer in default with demand that he collect the goods ordered or accept their delivery. Should the Buyer within 5 days of the afore-mentioned notice of default fail to collect the said goods, the agreement shall de iure be terminated at the Buyer’s charge. In the case of termination of the agreement at the Buyer’s charge in keeping with this provision, the Buyer shall be liable to pay to Moments Furniture a fixed compensatory indemnity of 50 % of the selling price of the goods in question, without prejudice to Moments Furniture’s right to claim payment for higher real loss and damage suffered. The termination shall not prejudice payment of the already accumulated due storage charges. Moreover, Moments Furniture shall be entitled to remove the ordered goods from its premises at the Buyer’s expense.
Moments Furniture shall be entitled to deliver the goods in consignments, unless agreed to otherwise or the partial deliveries themselves have no independent value. Moments Furniture shall be entitled to invoice the partial deliveries separately.
In the event of a sale and delivery to a Buyer located within Belgium, Moments Furniture shall, in addition to delivering the goods, also undertake their assembly in situ. In the event of a sale to a Buyer located outside Belgium, Moments Furniture shall only be responsible for the delivery of the goods ordered (Ex Works) and the Buyer shall himself undertake their assembly in conformity with the instructions provided to him. Since the assembly service provided by Moments Furniture to a buyer located within Belgium, with delivery likewise within said country, is merely ancillary to the sale of the goods itself, which constitutes the major element of the company’s obligations, the latter can never be considered to be a contractor and the agreement between Moments Furniture and the Buyer can never qualify as a contract agreement.
4. Non-conformity and visible defects
It shall be incumbent on the Buyer to check the delivered goods and, case pertaining, to note any comments, with due regard to the conditions as described below. In the absence of comments, the goods shall be considered to have been delivered conform to the terms of the agreement. No comment by the Buyer shall be accepted concerning non-conformities in colour that have been already noted in the price offer (e.g. without being limitative, resulting from the structure of the wood, the effects of the wood’s exposure to light, or in the case of fabrics on steel).
The remarks concerning the conformity of the goods or visible defects should be communicated by e-mail to Moments Furniture at the moment of the delivery and substantiated by photos that show the non-conformity or visible defects in question. As of the signing of the receipt of the goods without any remarks or reservations by either the Buyer or the carrier whom he has charged with their transport, the Buyer shall forfeit his right to lodge any claim on the grounds of non-conformity or visible defects.
Any resale or use of the goods by the Buyer shall deprive the latter of his future right to make any comments concerning their conformity. The warranty does not cover defects or any loss of goods arising as a result of their transport or storage by the Buyer, or of their storage by Moments Furniture after the initial delivery date due to their delayed collection by the Buyer. The comments submitted by the Buyer shall not permit the latter to default on his payment obligations with respect to the delivered goods.
After thirty calendar days following delivery of the goods, no legal procedure can be instituted by the Buyer on the grounds of non-conformity, while legal action within this time limit can be brought only in so far as the comments have been formulated and forwarded duly accompanied by photos in evidence. Following the expiry of said term, the Buyer shall no longer be able to invoke any kind of non-conformity of the goods or resort to any non-conformity as a defence vis-à-vis Moments Furniture when the latter starts a legal procedure to claim payment of outstanding debts.
5. Latent defects
By latent defects is meant production faults that render any normal use of the product impossible and that remained hidden from the Buyer prior to his making use of it (“Latent defects”). Moments Furniture shall indemnify the Buyer for Latent defects, with observance of the legal provisions obtaining and under the following conditions:
- The warranty is only valid for goods that have legitimately been acquired by the Buyer;
- The warranty is only valid for goods that have been produced entirely by Moments Furniture alone;
- The warranty is limited to the replacement or repair of the defective parts, without the possibility for the Buyer to claim any kind of compensation, and this irrespective of the cause of the defect in question;
- The warranty does not cover defects and thefts occurring during the transport or the storage of the goods on the Buyer’s premises, or during their storage with Moments Furniture following the initial delivery date due to the delayed collection by the Buyer;
- The warranty does not cover any abnormal usage of the goods or usage that is contrary to the user instructions that are handed to the Buyer at the time of their purchase;
- The warranty does in no way cover the faulty maintenance of the goods, or of the parts and fabrics, that is to say, the maintenance that is carried out contrary to the instructions of the manufacturer of said parts or fabrics. The Buyer can at any time request the necessary information concerning the maintenance of the parts and fabrics of the goods from Moments Furniture, which will readily provide such information. Should the Buyer neglect to request the maintenance instructions and, hence, cause damage to the goods because of faulty practices, Moments Furniture can in no wise be held accountable under its warranty for Latent defects;
- The warranty does not cover the faulty installation by the Buyer or by a third party acting on his request, nor shall it cover repair works performed by the Buyer himself or by a third party acting on his request.
- The warranty term for the products, the construction, the electrical motors, and the movable parts of the products is limited to two years following their initial commissioning. It is the Buyer’s responsibility to demonstrate the date of the commissioning. Should the Buyer be unable to prove that the goods have been in actual use for less than two years, the duration of their usage shall be deemed to exceed this period, to be counted as of the initial delivery date.
- The warranty term for the fabrics or for the commercial products delivered by Moments Furniture that on its price offers and/or the technical fiches are identified by the code “CL” is limited to the warranty term granted by the relevant supplier of Moments Furniture. For what concerns these particular goods, the warranty which Moments Furniture is held to provide can never extend beyond the warranty term that the company itself receives from its suppliers.
- The latent defect needs to be communicated to Moments Furniture by e-mail within 48 hours following its being noticed and the complaint must be supported by photos that provide visual evidence of the presence of the latent defect. Failing submission of such evidence, Moments Furniture shall not entertain the complaint.
- In the event the Buyer has outstanding debts, Moments Furniture shall invariably be entitled to suspend its warranty obligations vis-à-vis the former until receipt of full payment of the outstanding indebtedness.
The warranty of Moments Furniture consists of:
- For what concerns the sale and delivery of goods to a Buyer located in Belgium:
- Repair of the goods, whereby the defective parts are re-supplied and re-assembled.
- The warranty, however, works degressively, with this proviso that the warranty shall every year be reduced by 20 per cent for goods under a 5-year warranty period and by 50 per cent for goods under a 2-year warranty period. This then means that the costs of the parts needed for repair shall be charged to the Buyer in keeping with the annual depreciation, whereby the amount charged consists of the balance of the total amount for said parts decreased by the depreciated percentage.
- For what concerns the sale to a Buyer located abroad, Moments Furniture has the choice between:
- The provision of new parts in replacement of the defective ones conform to the above-mentioned degressive warranty, whereby the cost of the part consists of the balance of the total cost of the part decreased by the depreciated percentage; OR
- Payment by Moments Furniture to the Buyer of the value of the part in question, whereby the balance paid amounts to the balance of the total sum reduced by the depreciated percentage.
In the event of a non-conform delivery, when a visible or latent defect is effectively noticed by Moments Furniture, and the conditions for intervention under warranty coverage are fulfilled:
- the Buyer can only request the replacement of the non-conform goods and/or of the parts that are necessary to remedy the defects, without his being entitled to claim any compensation or termination of the agreement in consequence;
- the goods may only be returned when repair work on location proves impossible or would take an inordinate length of time. The costs for the return of the good or the shipment of the parts needed to remedy the defects shall be borne by Moments Furniture, but no single return of goods by the Buyer will be allowed without prior written approval by Moments Furniture. Only a carrier chosen by Moments Furniture shall be permitted to carry out the return transport. By disregarding the afore-mentioned points, the Buyer shall forfeit his right to the warranty.
- the costs associated with the repair, namely (and without being limitative) the repairman’s accommodation and/or transportation costs, his working hours, etc.… shall be borne by the Buyer. The warranty covers only the new parts necessary for repair. Only a repairman selected by Moments Furniture shall be allowed to carry out the repair work, the disregard of which condition shall render the Buyer liable to forfeiture of his right to the warranty.
- for what concerns the sale and delivery to a Buyer located in Belgium: in Belgium, the goods shall invariably be repaired and the cost of the parts assessed degressively, so that the cost thus charged consists of the balance of the total amount, decreased by the depreciated percentage.
- for what concerns the sale to a Buyer located abroad, Moments Furniture has the choice between either (i) the dispatch of new parts in replacement of the defective ones conform to the degressive warranty, (ii) or payment by Moments Furniture to the Buyer of the value of the part, whereby the balance paid consists of the balance of the total amount, decreased by the depreciated percentage.
The prices and tariffs applicable to the order are those valid at the time of the placement of the order by the Buyer as provided for under article 2 and are invariably quoted in Euro currency. The prices and tariffs are established exclusively by Moments Furniture and shall at all times be subject to adjustment, without retroactive effect and solely applicable to future transactions. The changed prices shall become effective as soon as they are communicated to the Buyer. No single document submitted by the Buyer shall bring about any change in the prices or tariffs. For what concerns sales abroad, the prices are quoted without duties, taxes, delivery and packaging costs. For what concerns sales within Belgium, the prices are quoted inclusive of taxes and delivery costs. The prices are net and without discount and payable in keeping with the modalities as defined below.
Moments Furniture may at the time of the price offer grant a discount based on the size of the total order. Should the Buyer, following the placement of the order, decide to reduce the initial volume of works or the quantity of goods, Moments Furniture reserves the right to revoke the discount and charge the standard full price.
8.1 For what concerns sales within Belgium:
On the placement of orders in the amount of 30,000.00 EUR or more, an advance cash payment of 30% shall be required. The remaining balance needs to be paid in full within 30 days of date of invoice, without which no delivery will be made.
8.2. For what concerns sales outside Belgium:
Barring written provisions otherwise by Moments Furniture, an advance cash payment equal to 50% of the order price shall be required. The remaining balance needs to be paid in full prior to the delivery of the products, without which no delivery will be made.
In case a fixed sale price has been agreed to with the Buyer, Moments Furniture shall nonetheless be entitled to charge a higher price in the case of projects that extend over several years. This increase can only be charged on submission of proof by Moments Furniture that at the time of delivery of the ordered goods, the price of the raw materials for the goods in question has risen by at least 10%, whereby, to a maximum of 80% of the total cost, the part of the price representing the said raw materials is being increased by 10%.
The prices quoted by Moments Furniture are invariably VAT exclusive and without any other charges and levies or costs possibly to be incurred within the context of the agreement, including packaging, shipment, and administrative costs, unless stated otherwise.
Invoices are payable within thirty calendar days as of time of shipment. When the delivery is made in two or several parts, each delivery shall be billed separately.
Only the effective collection of the total amount of the sums owing shall be considered as full payment. In order to be enforceable against Moments Furniture, any objection to an invoice needs to be sent to the latter by registered mail within eight calendar days following receipt of the invoice. In order to be valid, the objection needs to be fully justified.
In the event Moments Furniture has credible reasons to suspect that the Buyer is experiencing financial difficulties, does not offer any guarantee of his solvency, or has already in the past failed to pay Moments Furniture or other providers for his orders within the term agreed to, Moments Furniture shall be entitled to suspend the acceptance or execution of an order until receipt of an advance payment or of the full amount of a future invoice.
In the event that the Buyer rejects the afore-mentioned conditions as drawn up by Moments Furniture and fails to offer an adequate guarantee of his solvency, Moments Furniture shall be entitled to refuse the continued execution or delivery of already placed orders, and this without the possibility for the Buyer to claim unjustified refusal to sell or without any right to compensation being created in the process.
9. Late payment
When the Buyer fails to pay the total invoiced amount by its due date:
- the Buyer shall without delay and de iure become liable to pay an interest of 12 % per annum until the date of full settlement.
- the Buyer shall in case of non-payment within eight calendar days after the issue of a notice of default become liable to a fixed indemnity of 12 % of the total price, and this with a minimum of 125 EUR.
- Moments Furniture shall be entitled to recover the costs incurred for the collection of the outstanding amounts from the Buyer.
The above-mentioned compensations shall be calculated on the price inclusive of taxes. Moments Furniture reserves the right to suspend any order or delivery of goods in case an order remains unpaid.
In case of non-payment, Moments Furniture reserves the right to cancel the sale and claim compensation. Should the sale be cancelled, either wholly or in part, for reason of an error or shortcoming on the Buyer’s part, the latter shall be liable to the payment of a fixed compensation equal to 50% of the amount of the cancelled sales agreement, without prejudice to Moments Furniture’s right to claim reimbursement of the costs incurred to repossess the goods or, possibly, to restore them to their original condition.
10. Test models
Moments Furniture may opt to supply the Buyer for a given period with certain products for testing purposes. The Buyer shall assume full and sole responsibility in the event of their being damaged or lost. In case of heavy soiling, wear, or other value reduction, the Buyer shall compensate Moments Furniture for the total damage thus inflicted on the products.
11. Retention of title
The goods shall remain the property of Moments Furniture until full payment of the price stated in the relevant invoice has been received. This provision shall apply to all outstanding claimable amounts which the company holds vis-à-vis the Buyer and to all goods bought from Moments Furniture and held in the Buyer’s possession.
Given the above, the Buyer shall be prohibited from reselling the goods that have not fully been paid for unless such resale fits within the ordinary course of his business operations. Nonetheless, it shall be incumbent on the Buyer to retain at all times in his possession the number of goods bought from Moments Furniture that corresponds to the still outstanding amounts owed to the latter. At no time shall the Buyer be entitled to use the still unpaid goods bought from Moments Furniture as collateral security. Any transaction contrary to this article shall not be enforceable against Moments Furniture.
In the event of non-payment, Moments Furniture shall be entitled to request an inventory of all its products sold to the Buyer, who must give his permission to the repossession of the goods in question. The Buyer commits himself accordingly to immediately take the necessary steps and grant Moments Furniture the right to enter his warehouse in order to recover the goods.
Excluding the guarantee on Latent defects, Moments Furniture shall only be held liable in cases of fraud, intentional or grave error.
Moments Furniture shall solely be held liable for direct damage. Moments Furniture shall never be liable for indirect damage, including but not exclusively consequential damage, lost profit, missed savings, and damage to third parties. In any event, Moments Furniture’s liability for damage related to the delivered goods or an illegal act committed against Moments Furniture, shall remain limited to the amounts for which Moments Furniture has been insured.
Any right to institute a claim regarding an alleged liability on the part of Moments Furniture shall lapse after one year as of the time the works have been completed.
The Buyer shall hold Moments Furniture wholly free and harmless against any and all possible claims lodged against the latter by third parties.
13. Force Majeure
By force majeure is to be understood each and every occurrence happening beyond the control of either party and which the latter could not reasonably be expected to have foreseen or avoided and which renders compliance with their respective contractual obligations impossible.
The following, amongst others, are considered equivalent to force majeure situations that make it impossible for Moments Furniture to fulfil its obligations: a general or partial strike of its personnel or regular suppliers and carriers, fire, flooding, war, technical defects in the production line, epidemics, road obstructions or barriers, or the shut-off of electrical power or gas supply.
In such circumstances, Moments Furniture shall inform the Buyer concerning the force majeure situation and of the immediate suspension of the parties’ obligations, de iure and in good right and without any entitlement to compensation.
In case the duration of the force majeure situation exceeds thirty business days counted as of the day of its occurrence, the sale between the parties shall be dissolved by one of the parties without either party being entitled to any compensation as a result of the force majeure situation. The dissolution shall enter into force immediately following receipt of the notification reporting the occurrence of the force majeure situation.
In case one or several of the clauses in the present GC should be declared null and void, this nullity shall in no wise affect the validity of the remaining clauses in the GC or of the agreement as a whole.
15. Intellectual property
Every technical document, technique, or good to which Moments Furniture holds intellectual property rights must be returned at the latter’s first simple request and may not be sold, copied, used, or marketed without Moments Furniture’s prior written consent.
16. Applicable law and competent jurisdiction
The present GC shall be governed solely by Belgian law, with the application of the Vienna Sales Convention explicitly excluded.
For what concerns sales to a Buyer located within the European Union, every dispute concerning the interpretation or application of the present GC shall exclusively be heard and entertained by the Courts of Ghent, Department Courtrai.
For what concerns sales to a Buyer located outside the European Union, every dispute concerning the interpretation or application of the present GC shall be definitively settled under the CEPANI rules of arbitration by one or more arbitrators appointed in accordance with said rules. The arbitral tribunal shall be chaired by one arbitrator and its seat located in Brussels. The arbitration procedure shall be conducted in English. Each party shall assume its own lawyers’ fees as well as all other costs related to the arbitration procedure.
17. Acceptance by the Buyer
The Buyer affirms to have taken due cognisance of the present GC and explicitly states and declares his agreement therewith. The Buyer waives each and every appeal to any document contrary to these GC, including his own general conditions.