General Terms and Conditions of Sale US FLOORS INTERNATIONAL LLC ( US FLOORS)
A. Scope
1. Unless there is an agreement to the contrary and that agreement is accepted explicitly by both parties, only these general terms and conditions apply to the legal relations between the parties. These general terms and conditions always take precedence over those of the client. They replace any previous terms and conditions or arrangements between the parties. Deviating terms and conditions are only valid with the explicit prior written consent of US FLOORS.
2. By placing an order, receiving a delivery, or paying an invoice once, the client acknowledges that it has read these general terms and conditions and declares that it accepts these general terms and conditions, which are always communicated.
3. The parties conclude the agreement (including these general terms and conditions) intentionally and with full knowledge of the facts and without any interdependence. The parties acknowledge explicitly that a balanced legal relationship has come about between them in the light of the general economy of the agreement and the assignment, current trade practices, and the services covered by the agreement.
B. Formation of the contract
4. All price quotations made in any form whatsoever are non-binding and without any obligation. Price quotations are only binding if they are accepted in writing or digitally within a period of thirty days starting from their transmission and if the advance payment is completed on time. If price quotations are not accepted within the aforementioned period of thirty days, they are subject to revision unless otherwise agreed.
5. Orders from clients do not bind US FLOORS. Once US FLOORS has received an order from a client, US FLOORS can confirm the order by means of an order confirmation from the management organ or an explicitly authorised agent. Representatives, salespersons, or employees of US Floors are not authorised to bind US Floors legitimately except in the case of special authorisation and they are not authorised to receive payments or advance payments.
6. If there are no objections against the order confirmation within ten days of its transmission, the sales agreement is confirmed definitively.The start of the implementation of the sales agreement applies as confirmation unless this is done subject to reservation.
7. If the client terminates or cancels the agreement due to any circumstances whatsoever or if the agreement cannot be implemented or completed due to its actions, the client owes US FLOORS compensation of 25% of the value of works or services which have been ordered and not yet carried out plus all the inherent costs already generated. This compensation covers fixed and variable costs and potential loss of profit.
8. If necessary, works already carried out are owed for the full 100%. All advance payments already made cannot be reclaimed.
C. Delivery
9. The delivery periods stated by US FLOORS are merely indicative and not binding unless explicitly agreed otherwise in writing. Delay in the delivery for any reason whatsoever cannot give the client the right to cancel an order or claim compensation under any circumstances.
10. The delivery of the goods and the transfer of the risk are always deemed to have taken place in the workshops or warehouses of US FLOORS (Ex Works), regardless of the provisions in the contract regarding the payment of transport costs with or without designation of the place of delivery.
11. The goods are always transported at the client’s risk, even with a retention of title clause. All transport costs are paid by the client.
12. The goods must be unloaded from the delivery vehicle using efficient and safe devices, and this is at the client’s risk. All additional unforeseen costs are also paid by the client.
13. The client should ensure that the goods can be delivered in the normal way to the agreed place and on the agreed date, and, amongst other things, should make sure that the delivery place is accessible and that the required equipment is available to unload the goods. If those conditions are not met, the client is obliged to compensate US FLOORS for all damage, including waiting times.
D. Acceptance of the merchandise
14. The merchandise is accepted by law when it leaves our warehouses located in Kruishoutem or another warehouse which we indicate on the order confirmation. If the client does not accept the ordered goods for the shipment after being invited to do so, the shipment is deemed to be accepted by the client.
15. Any item which is faulty or not in conformity to the order shall be replaced. The responsibility of US Floors is limited solely to a simple exchange without any liability for compensation of any kind whatsoever. US Floors is not obliged to replace goods which have already been subjected to processing. All complaints regarding the delivery should be sent by registered letter within 48 hours of receipt of the goods to the registered office of US Floors in Belgium, and otherwise the delivery is deemed to have been accepted.
16. If the client is requested to sign any work performance sheets, the signing of those sheets acts as irrefutable proof that the client has accepted the materiality of the work performances stated therein and it is no longer possible to accept any complaints about that.
E. Price
17. The price offered by US FLOORS does not include packing and transport.
18. The following elements are the client’s responsibility unless explicitly agreed otherwise in writing: the loading, storage, transport, unloading and the provision of the required unloading equipment, and all costs and insurance costs which arise from this.
19. Free-at-Community frontier price means that the goods are transported at the responsibility of US FLOORS to the closest accessible place to the delivery vehicle where the merchandise shall be placed. If there is no explicit agreement, the costs of unloading and the provision of the unloading equipment and all related costs(including insurance costs) are the client’s responsibility. The goods are always sent at the client’s risk.
20. The price is that stated on the order confirmation unless US FLOORS has no other option but to modify it in line with the change in its fixed and/or variable costs as a result of changes in the structure thereof(e.g. raw materials, wages, or energy). Any price review will be implemented in accordance with the legally permitted standards. In this case the new price applies as stated on the front of the invoice.
F. Payment
21. Unless otherwise stated on the invoice, all invoices are payable by bank transfer within 30 days of the invoice date. Invoices are sent bye-mail in PDF format, unless the client explicitly objects to that.
22. Deliveries, with the exception of deliveries to retailers, are not initiated by US FLOORS until after the completion of an advance payment of 35% of the total price.
23. If this is not paid by the expiry date, late payment interest of 1% per month and a lump-sum compensation of 10% of the invoice amount(with a minimum of €200.00) becomes due automatically and without notice of default and this is regardless of the right of US FLOORS to claim a greater sum on the basis of proved damage.
24. Extension periods for payments do not take away the right to late payment interest and compensation clauses.
25. If at any time US Floors has any doubts about the solvency of the client as a result of court decisions against the client, the non-payment or late payment of one or more of the invoices, or any other demonstrable events, US Floors explicitly reserves the right to demand a payment in advance for the deliveries still to be carried out or to ask for other assurances, even if all or some of the goods have been sent. If the client refuses to comply with this request, US Floors reserves the right to terminate the agreement unilaterally, immediately, and without having to pay any compensation. If applicable, the client owes a lump-sum compensation of 10% of the total price of the order.
26. Even in the event of a dispute or the appeal to safeguard clauses, the payment provided for under the terms of this contract should be paid and the payment may not be postponed.
27. In the event of a late payment, the client is also obliged to cover the full payment of both judicial and non-judicial recovery costs, including costs for lawyers, bailiffs, and debt collection agencies.
28. The goods remain under the full ownership of US FLOORS for as long as the full purchase price, any interest, and compensation are not paid. In the event of a delay in the payment or the refusal to accept the goods, US FLOORS reserves the right to take back the goods, wherever these goods are located and in whoever’s possession they are, even if these goods have been incorporated or modified. USFloors can register this retention of title in the property register.
29. The client is forbidden to resell the delivered goods, give them in pledge, or to transfer the claim until the purchase price has been paid in full.
30. Despite the aforementioned retention of title, all care, responsibility, and risk of any kind whatsoever is for the client’s account.
31. In the event of the non-payment or mere partial payment of the debt by the expiry date, US FLOORS reserves the right to terminate further deliveries. US FLOORS also reserves the right to regard the agreement as terminated automatically and without prior notice of default for the entire contract or the part not yet implemented, and this is without prejudice to its right to claim further compensation.
32. Every delay in the payment by the client means that all due sums can be claimed immediately, depending on the services which are stated on the invoice.
33. The client has a duty of care with regard to the goods which come under the retention of title and must store them and keep them in perfect condition in a clean and suitable place in accordance with the highest standards and safety requirements which are commonplace in the sector. Moreover, until the time of the actual transfer of ownership, the client must insure these goods against all the customary risks in the sector (including fire, water damage, and theft)and, if necessary, show the insurance policy to US FLOORS upon request. The client agrees to inform US FLOORS if the sold goods a restored in a property which is not owned by the client and shall disclose the identity of the owner at the request of US FLOORS.
G. Guarantee
34. US Floors offers the client the contractual guarantee attached in the appendix.
H. Termination
35. US Floors is entitled to terminate the agreement with the client at anytime, with immediate effect, without a court order, without prior notice of default, and without the payment of any compensation in the following cases:
i. if the client, despite written notice of default and due regard for a period of five (5) days, is still in default with the prompt and proper implementation of one or more of its duties arising from the agreement;
ii. in the event of cessation of payment or a request for bankruptcy by the client;
iii. in the event of the liquidation or termination of the client’s activities;
iv. if the client has a change in management;
v. if some of the client’s assets are seized;
vi. if the client refuses to make an advance payment or give other assurances requested by US Floors in accordance with Article 14 of the general terms and conditions; or
vii. if US Floors has reasonable grounds to doubt that the client shall fulfil its duties towards US Floors.
In the event of the termination of the agreement by US Floors, the client owes a lump-sum compensation of 10% of the total of the outstanding sums (with a minimum of €150.00), regardless of the right of US Floors to claim greater compensation if the damage actually suffered ins greater and all claims of US Floors on the client can be claimed immediately.
I. Exoneration
36. US FLOORS is not responsible for any damage except for in the case of deliberate or misleading misconduct on the part of US FLOORS.
37. Notwithstanding the above, US FLOORS only accepts liability for damage caused by sold goods which cannot be attributed directly to an error by US FLOORS such as, but not limited to lost profit, financial or commercial losses, loss of production, the increase in the general costs, the increased administration costs, loss of or damage to data, loss of contracts, intangible loss, and the loss of clients.
38. US FLOORS is not liable for damage to third parties and does not have to safeguard its client in this case.
39. US FLOORS is also not liable for damage as a result of force majeure, such as, but not limited to: strikes, lock-outs, illness, fire or disruptions on the premises of US FLOORS or its suppliers, weather conditions, and insurgency. Force majeure also includes all unforeseeable circumstances on the premises of third parties upon whose services US FLOORS calls upon in the implementation of the agreement.
40. If and in so far as the liability of US FLOORS is upheld, the payment for damage will never exceed 15% of the value of the sold goods and, moreover, a maximum of the amount for which US FLOORS has taken out liability insurance cover, namely €2,500,000.00.
41. US FLOORS is always entitled to replace faulty merchandise whereby any right on the part of the client to compensation expires automatically.
42. The risk allocation in this article has been taken into account with the negotiation of the mutual obligations in the agreement and has been agreed as such in order to achieve a balance between the economic risks between the Parties.
43. None of the exclusions included in these general terms and conditions relates to liability for the wilful intent or serious misconduct of US FLOORS or its appointees and trustees, and nor are the provisions meant in a sentence which is contrary to national or international binding legislation.
J. Force majeure and unforeseen circumstances
44. US FLOORS does not accept any liability whatsoever if it is unable to fulfil its duties as a result of force majeure. The client cannot cannot claim any compensation in this case for the unintentional late execution of the work or the full or partial non-execution of the work.
45. Force majeure includes, but is not limited to the following elements:illness, accidents, death, war, strike action, pandemics, mandatory closures due to government measures, insurgencies, natural phenomena, and/or travel restrictions and/or prohibitions.
46. US FLOORS reserves the right to regard the agreement as terminated automatically and without prior notice of default and without being held liable US FLOORS simply cannot continue to carry out the agreement in circumstances such as, but not limited to force majeure, strike action, lock-out, insurgency, mobilisation, fire, epidemic, severe illness, floods, natural disasters, government measures, bankruptcy of our supplier, armed robbery, and unavoidable faults in our production chain.
47. In the event of a fundamental change in the circumstances and/or conditions, which cannot be attributed to US FLOORS and as a result of which the contractual obligations of US FLOORS would become unreasonably worse, the parties agree to re-negotiate the terms and conditions of the agreement in order to arrive jointly at a fair solution for the continuation of the agreement. The Parties strive here for a similar balance between the contractual duties of the parties as the balance which existed when the agreement was concluded.
48. In the event of the parties being unable to agree on the question as to whether or not there have indeed been fundamental changes in the circumstances and/or conditions as understood by the previous paragraph, both parties shall appoint specialists who will verify between themselves, duly assisted by a third party, whether or not such conditions or changes have occurred.
49. In the absence of a positive reaction from the client to proceed to re-negotiations within one month after US FLOORS has made a request to this party for that purpose in writing or by electronic mail, US FLOORS shall be legally entitled to terminate the agreement by registered letter without being obliged to pay any compensation.
K. Privacy
50. US FLOORS processes the client’s personal data in accordance with the provisions of EU Directive 2016/679 relative to the protection of natural persons in relation to the processing of personal data(hereinafter: GDPR) and the Law of 30 July 2018 relative to the protection of natural persons with regard to personal data processing.US FLOORS collects and processes the client’s personal data for its client database (e.g. administration, invoicing, and follow-up of dossiers).
51. Personal data is processed on the basis of Article 6.1 (a) (seeing that the client has now given its explicit consent for the processing by means of its agreement with the General Terms and Conditions),Article 6.1 (b) (seeing that the processing will sometimes be necessary for the implementation of the agreement between the parties),Article 6.1 (c) (seeing that the processing will sometimes be necessary in order to comply with a legal obligation which lies with the client),and Article 6.1 (d) (seeing that the processing will sometimes be necessary in order to act in the client’s justified interest) of the GDPR.
52. In so far as the personal data processing is only carried out on the basis of Article 6.1 (a) (consent), the client always has the right to withdraw the granted consent.
53. The personal data shall be kept for the period which is necessary to meet the legal requirements and at least for as long as the contractual prescription period runs with regard to US FLOORS. The client always has the right to view its own personal data and to request to have it amended. Under certain terms and conditions, it can also have its personal data removed, restrict the processing thereof, and object to the processing of personal data regarding itself on the basis of Article6.1 (f) GDPR. Moreover, the client has the right to obtain a copy of its personal data in a structured, conventional, and mechanically legible form. In order to exercise the aforementioned rights, the client is requested to send an e-mail to the following e-mail address:info@usfloors.be.
54. The client has the right to lodge a complaint with the Data ProtectionAuthority (Drukpersstraat 35, 1000 Brussels – contact@apd-gba.be).
L. Nullity
55. The possible nullity of one or more of the provisions of these general terms and conditions does not result in the nullity of the entire agreement. The other provisions remain fully applicable. If one clause is affected by nullity, this clause is replaced by a provision which relates as closely as possible to the intention of the Parties.
M. Applicable law and authorised law courts
56. Only Belgian law applies to all legal relationships with the client.
57. Only the law courts of Ghent or those of the place of the operating office of US FLOORS are authorised in the event of a dispute.
58. The client agrees, at the risk of lapse, to present all complaints to US FLOORS in advance of every judicial hearing. US FLOORS has one month of time to investigate the justification of the complaint.
N. Renunciation
59. No action whatsoever, lack of action, silence, or any other conduct on the part of US FLOORS shall be regarded as a waiver or renunciation of any right or benefit.