GENERAL TERMS AND CONDITIONS MEYLAND NV & A.B.S. ROELAND NV
1.1 “GTC”: the present general terms and conditions
1.2 “Services“: the execution of works/services by MEYLAND on behalf of the Customer (such as, but not limited to, design and engineering, execution of studies, design of Machinery, building of structures around Machinery, assembly and assistance in commissioning Machinery, maintenance of Machinery)
1.3 “Goods“: means all Goods offered by MEYLAND, in addition to Machinery (such as spare parts);
1.4 “Machinery”: all transport, storage and other systems (both standard and made-to-measure Machinery) intended for industry and agriculture, as offered by MEYLAND to the Customer;
1.5 “MEYLAND”: the public limited company “MEYLAND” (VAT BE-0406.096.834) and the public limited company “A.B.S. Roeland” (VAT BE-0472.351.990), both with registered offices at B-9991 Maldegem, Vaartkant 3, Registry of Legal Persons Ghent, subsection Ghent including the MEYLAND ELEKTRO, MEYLAND AGRO and STAALTEK departments;
1.6 “Privacy Legislation“: EU Regulation 2016/679 of 27 April 2016 on the protection of natural persons with regard to the processing of personal data and on the free movement of such data and repealing Directive 95/46/EC, the Act of 30 July 2018 on the protection of individuals with regard to the processing of personal data, and other (future) Belgian legislation implementing the aforementioned Regulation or any other legislative act amending it;
1.7 “Customer”: Any professional customer, as well as any person placing an order with MEYLAND for Machines, Goods and/or Services in the name of or on behalf of a professional customer;
1.8 “Website“: www.meyland.be and www.absroeland.be
2 Scope of the GTC
2.1 All commercial relationships, both current and future, between MEYLAND and the Customer shall be governed by: (in hierarchical descending order): (i) the written and signed agreement between MEYLAND and the Customer, (ii) the written and/or electronic order form, (iii) MEYLAND’s quote accepted by the Customer in writing and/or electronically, (iv) these GTC, (v) the warranty conditions, user manuals and/or installation instructions supplied with the Machinery and/or Goods, and (vi) Belgian law.
2.2 The GTC will always be sent to the Customer along with the other documents and will also be available on the Website. By placing an order/assignment with MEYLAND or concluding an agreement, the Customer acknowledges acquaintance with these GTC, and hereby accepts them. The GTC shall always take precedence of those of the Customer, even if these Customer conditions specify that they alone apply.
2.3 The (recurrent) non-application of any right by MEYLAND shall only be considered as tolerating a specific situation, and shall not prevent MEYLAND from invoking this right at a later date.
2.4 MEYLAND reserves the right to amend or modify its GTC at any time upon prior written/electronic notification to the Customer. The amended GTC only apply to orders placed and/or agreements concluded after the changes have been implemented and notified to the Customer.
2.5 The possible invalidity of one or more provisions of these GTC, or any part thereof, shall not affect the validity of the other provisions and/or the remaining part of the provision in question. In such cases, MEYLAND and the Customer shall attempt to replace the invalid provision with an equivalent provision. Should the Parties fail to reach an agreement, the competent court shall adapt the invalid provision to what is (legally) authorised.
3 MEYLAND Activities
3.1 MEYLAND’s main activity is the manufacture and sale of Machinery together with all associated Services, including:
– Design, engineering and studies of Machinery (both with and without the subsequent production thereof);
– Drawing Machinery;
– Drawing various sample drawings (under the trade name Staaltek);
– Production of custom-made Machinery;
– Purchase of Machinery for the Customer and resale (under the trade name Meyland or Meyland Agro);
– Sale of Goods;
– Building a structure (e.g. warehouse) around the Machinery;
– Assembly, installation and assistance during commissioning of Machinery (under the trade name Meyland or Meyland Elektro for Services to electrical installations);
– Maintenance of Machinery.
3.2 An agreement with the Customer may relate to one or more of these activities.
3.3 These GTC first cover the general provisions applicable to the implementation of all of MEYLAND’s activities in relation to the Customer (unless expressly stated otherwise), and then the specific provisions relating exclusively to (i) the sale of Machinery and Goods and (ii) the rendering of Services. I. GENERAL
Section I. applies to all activities carried out by MEYLAND in relation to the Customer.
4 Publication of announcements
4.1 Catalogues, brochures, newsletters, notes, folders, publicity announcements, as well as announcements on the website are entirely free of obligation and shall only be considered as an invitation to place an order by the Customer, unless explicitly stated otherwise. The listed price, description, characteristics, colours and/or images of the Machinery, Goods and/or Services are merely indicative and non-binding upon MEYLAND.
5.1 A quote is only valid for the specific assignment/order and is therefore not automatically valid for subsequent (similar) orders/assignments. A quote is also only valid for the period stated on the quote, unless explicitly agreed otherwise. If no duration is stated on the quote, the period of validity of the quote is limited to 2 months.
5.2 Moreover, quotes only include those Machinery, Goods and Services which are explicitly indicated, to the exclusion of additional work as a result of an amendment to the assignment/order by the Customer and/or force majeure in accordance with Article 18.
6 Establishment of the agreement
6.1 An agreement is only established after written or electronic order confirmation of the assignment/order (which will not be unreasonably refused) by a person authorised to legally bind MEYLAND, or by MEYLAND starting to implement the assignment/order (whichever comes first).
6.2 MEYLAND reserves the right to request additional information with regard to the Customer, its activities or creditworthiness – and, if this is not provided – to refuse or suspend implementation of the assignment/order, or to demand full payment in advance.
7 Modifications after the establishment of the agreement
7.1 Any modifications or additions to the assignment/order after the establishment of the agreement shall only be valid with the written/electronic agreement of both parties, among other things with regard to the price, the payment conditions, performance deadlines, additional specifications, legal or other requirements/conditions, etc. MEYLAND shall always be flexible and try to accept these modifications/additions where possible. In the absence of written consent concerning changes or additions to the assignment/order, it will be assumed that these have been carried out in accordance with the Customer’s (oral) instructions, unless the Customer proves otherwise.
7.2 The price of these modifications or additions shall be calculated on the basis of price-determining factors applicable at the time the modifications or additions are agreed.
7.3 MEYLAND shall only be bound by the Customer’s specific instructions with which the Machinery/Goods and/or Services must comply if these specific instructions are included in the written and/or electronic quote, order confirmation and/or written and signed agreement between MEYLAND and the Customer.
7.4 The Customer shall not be entitled to transfer the agreement or any part thereof to a third party without MEYLAND’s express written consent.
8.1 Cancellation by the Customer
In the event of cancellation, even partial, of an assignment/order by the Customer, MEYLAND reserves the right (i) outside the circumstances of force majeure/hardship and (ii) without any fault on the part of MEYLAND, to charge the Customer damages amounting to 30% of the price of the cancelled assignment/order, with a minimum of five hundred euros (€ 500), without prejudice to MEYLAND’s right to compensation for higher proven damages, such as, but not limited to, the cost of materials and/or Goods ordered and performances already delivered.
8.2 Cancellation by MEYLAND
8.2.1 MEYLAND shall be entitled – without any right to compensation on the part of the Customer – to cancel the order/assignment when: (i) it is based on incorrect information provided by the Customer or if MEYLAND suspects that the Customer is relying on MEYLAND for reasons that cannot be considered objectively reasonable and acceptable, or (ii) after the conclusion of the agreement, for objective reasons, MEYLAND is not (or is no longer) able to carry out the assignment/order (including: no longer having Machinery and/or Goods in stock). In this case, MEYLAND shall inform the Customer of this within a reasonable period. Only when no alternative solution is available shall MEYLAND cancel the agreement and reimburse the Customer for the amounts already paid within 14 calendar days after the aforementioned notification.
8.2.2 In the event MEYLAND decides to cancel an agreement (i) outside the aforementioned circumstances, (ii) or outside the circumstances of force majeure/hardship and (iii) without any breach of contract on the part of the Customer, the latter shall at most be entitled to compensation equal to 30% of the price, with a minimum of five hundred (500) euros, without prejudice to the Customer’s right to compensation for higher proven damage.
9 Implementation of the agreement
9.1 The Customer is obliged to cooperate fully and to provide the necessary support in the preparation and execution of the order/assignment by MEYLAND. This includes, among other things, providing all necessary data, documents, specifications and instructions, which MEYLAND requires for the execution of the order/assignment.
9.2 MEYLAND is not required to check the correctness of the data provided by the Customer and shall therefore be entitled to rely on this information without any further checks. The Customer shall at all times be responsible for the correctness and completeness thereof and shall indemnify MEYLAND against claims from third parties in this regard.
9.3 MEYLAND shall always carry out the order/assignment on an independent basis. This independent cooperation between MEYLAND and the Customer does not entail any relationship of subordination.
9.4 MEYLAND shall organise its activities at its own discretion and dispose of its time independently, without it and/or its employees/appointees being held liable to the Customer for this reason.
9.5 If MEYLAND instructs one or more employees/appointees to carry out the order/assignment, its work shall be supervised and checked by one of MEYLAND’s coordinators in charge Unless otherwise agreed, neither the Customer nor its appointees shall ever have any form or part of employer authority over MEYLAND’s employees/appointees, meaning that neither the Customer nor its appointees can give them instructions or orders, nor exercise any control or supervision over them.
9.6 Any inspection certificates and/or licence required for the performance of the Services and/or the delivery or use of the Machinery and/or Goods must always be obtained by the Customer. Nor does any assessment and timing in this respect constitute a commitment on the part of MEYLAND.
9.7 The Customer guarantees that the agreed location for the execution of the order/assignment is accessible. If the commencement or progress of the execution of the order/assignment is delayed, disrupted or hampered by one or more factors as described in this article, then:
– The execution of the order/assignment is not started and/or stopped immediately (without any compensation being due by MEYLAND); and
– The costs (such as unnecessary travel costs and waiting times) shall be charged by MEYLAND to the Customer, with a minimum of five hundred euros (€ 500).
10 Advance payment
10.1 MEYLAND reserves the permanent right to request from the Customer in the case of assignments and/or orders (i) 30% of the total amount by way of advance payment, or (ii) request full payment from the Customer or (iii) request a bank guarantee prior to the implementation of the agreement.
10.2 The late payment in accordance with Article 10.1 shall in any case lead to the suspension of the delivery period. MEYLAND also reserves the right to cancel all or part of the assignment and/or order, even if the Services were performed in full or in part or the Machinery/Goods were delivered in full or in part, in which case the fixed compensation referred to in Article 8.1 shall be due.
11.1 All prices are expressed in euros. If this is deviated from, all exchange rate costs are at the expense of the Customer. All prices are excluding VAT and other taxes and levies, any insurance and administration costs, delivery and dispatch costs, as well as tests, unless expressly agreed otherwise.
11.2 Unless otherwise agreed, all additional costs relating to fire permits, fire prevention and safety are not included in the price.
11.3 If EN 1090 is not mentioned, it is assumed that this does not apply. If EN 1090 is still followed, the additional cost will be charged to the Customer. If no zoning plan is mentioned, ATEX will not be taken into account in the quote.
11.4 For assignments/orders worth less than five hundred euros (€ 500), an administration fee of fifty euros (€ 50) will automatically be charged.
11.5 MEYLAND reserves the right to revise its prices if there are objective reasons to do so, such as on the basis of an increase in raw material prices whereby the amounts to be paid are calculated on the basis of the formula below:
P = P˳ (a M/(M˳) + b S/(S°) + 0,20) (ᶟ)
P = invoice price
P˳ = first base price on [date]
M˳ = price of [certain raw material] on [date] taken from [a certain publication], in particular [EURO].
M = price of the same raw material on [date] (price at time of supply or invoicing)
S˳ = the reference hourly rate plus social security charges in the metal-working industry (national or regional average), recognised by the Federal Public Service for the Economy, SMEs, Self-employed and Energy and published on Agoria on [date], i.e. [EURO].
S = same salary on [date] (period of execution of the assignment or invoice date).
12 Electronic invoicing
12.1.1 By placing an order, the Customer expressly agrees to the use of electronic invoicing by MEYLAND, unless agreed otherwise in writing between the parties.
13.1 MEYLAND reserves the right at all times to invoice the price according to the execution of the order/assignment.
13.2 Unless otherwise agreed, all invoices from MEYLAND shall always be payable in full to MEYLAND (with the exception of advance invoices) within thirty (30) calendar days of the invoice date and without discount.
13.3 Invoices can only be validly contested via registered letter within fourteen (14) working days of the invoice date, and in any case prior to the processing of Machinery/Goods, and with an indication of the date of invoice, invoice number and detailed reasons for such protest.
13.4 Unconditional payment of part of the invoice amount implies the explicit acceptance of the invoice.
13.5 Partial payments made by the Customer shall be accepted subject to all reservation and without any prejudicial acknowledgement, and shall be allocated firstly to the collection costs, then to the compensation clause and accrued interest, and finally on the principal amount, whereby priority is given to the oldest outstanding principal amount.
14 Consequences of non-payment or late payment
14.1 Any invoice which is not paid either fully or partially on the due date shall lawfully incur, without any prior notice of default, late-payment interest at the rate of 1% per overdue month, whereby each commenced month shall be considered as fully elapsed, and furthermore, the due amount shall be increased with all collection costs incurred by MEYLAND pertaining to the recovery of the debt, as well as 20% of the invoice amount with a minimum of 100 euros (€100) (excl. VAT), as fixed damage compensation, without prejudice to the right of MEYLAND to claim additional damages.
14.2 If the Customer remains in default regarding the settlement of one or more of the outstanding claims of MEYLAND, the latter shall retain the right to cease any additional deliveries, and consider any other orders as cancelled, without prior notice of default, in which case the fixed damage compensation, as provided for in Article 8.1, shall be due. In addition, this shall result in all other invoices becoming immediately due and payable, even those that are not yet due, and the cancellation of all authorised payment conditions.
14.3 The same applies in the event of imminent bankruptcy, judicial or amicable dissolution, cessation of payments, as well as any other element indicating the insolvency of the Customer.
15 Delivery and performance times
15.1 However, unless specifically agreed otherwise, any delivery and performance times indicated shall be an indication only and always approximate.
15.2 Exceeding the anticipated term may not under any circumstance give rise to a fine, damages, substitution or dissolution of the agreement at the expense of MEYLAND. Likewise, a delay in the delivery of the Machinery/Goods and/or performance of the Services does not lead to the cancellation of an assignment and/or order. Exceeding the deadlines does not discharge the Customer from its obligations.
15.3 The delivery terms shall automatically lapse, if:
– MEYLAND does not receive all the necessary details, specifications or instructions from the Customer in good time; In this case, the prices are increased by the additional costs incurred;
– There are still outstanding claims against the Customer on account of MEYLAND;
– In the event of changes to the assignment and/or order;
– In case of force majeure/hardship in application of Article 18.
15.4 In no event shall MEYLAND be liable for delays incurred as a result of shortcomings on the part of MEYLAND’s suppliers, the Customer or any other third party.
16.1 Complaints must always be submitted to MEYLAND in writing or by e-mail, with identification of the relevant Machinery and/or good and/or the service, including a detailed justification of the complaint.
16.2 Lodging a complaint shall not entitle the Customer to suspend its payment obligations.
16.3 After identifying any defect, the Customer is required to immediately cease assembling the Machinery and/or Goods in question, and take all reasonable steps to prevent (further) damage. As part of the examination of the complaint by MEYLAND, the Customer shall be obliged to provide all desired cooperation, among other things by allowing MEYLAND to conduct an on-site examination into the conditions of operation, processing, installation and/or use, or have one conducted.
16.4 Any possible re-sending of the Machinery and/or Goods delivered by MEYLAND must first be approved in writing by MEYLAND. In the absence of such agreement, any returns shall be refused and all subsequently incurred costs shall be charged to the Customer.
16.5 The Customer must reimburse any costs incurred for unjustified complaints. Thus, in the event of an unjustified complaint, the Customer will be obliged to pay the invoice relating to the remanufactured and delivered Machinery/Goods and/or Services (in addition to the original invoice for the originally delivered Machinery/Goods and/or Services).
17.1 With the exception of product liability and MEYLAND’s indemnity in accordance with agreed additional commercial guarantees, MEYLAND’s liability shall be limited to the lower of the following amounts (i) the invoice value of the assignment/order, (ii) the amount paid out by MEYLAND’s insurer(s) and (iii) in any event, limited to the liability imposed by mandatory Belgian law. The Customer undertakes to provide a waiver of recourse against its insurer(s) vis-à-vis the insurer(s) of MEYLAND.
17.2 The Customer may under no circumstances claim warranty/indemnity from MEYLAND for:
– Non-functional differences between specifications and quality indications and the actual implementation of the Machinery/Good and/or Services delivered. The above applies on condition that these changes only concern details and do not detract from the specific functional and appearance characteristics essential to the Customer. MEYLAND undertakes to inform the Customer accordingly;
– Damage caused by incorrect, incomplete or late information and instructions from the Customer;
– Damage resulting directly or indirectly from an act on the part of the Customer or a third party, regardless of whether it was caused by failure to comply with the GTC, an error or negligence;
– Damage caused by the Customer or a third party if the Customer proceeds to disassembly, repair or other work without MEYLAND’s prior written approval;
– The allocation of the Machines/Goods by the Customer himself or by a third party;
– Damage occurs as a result of failure to comply with any advice provided by MEYLAND, which it always provides on a non-binding basis (e.g. instructions relating to maintenance), operating instructions and/or installation instructions;
– Indirect damage (damage to third parties or any consequential loss);
– Additional damage caused by further use or further application by the Customer after identifying a defect;
– Normal wear and tear, improper handling, extraordinary load, use of unsuitable equipment, external influences;
– Damage caused by force majeure and hardship in accordance with the provisions of Article 18.
17.3 The liability of MEYAND can only be invoked by MEYLAND’s direct Customer, and not by third parties.
17.4 The Customer shall fully indemnify MEYLAND, its appointees and employees, and shall make every effort to intervene in: (i) any claims and procedures resulting from its own actions, omissions, errors or negligence or by its personnel or by any third party to whom the Customer has outsourced the agreement, in violation of the agreement and/or these GTC and/or other laws applicable to the commercial transaction, and (ii) any claims and proceedings brought by third parties, who suffer damage in connection with the performance of the agreement.
17.5 The Customer shall indemnify MEYLAND for all damage (including indirect damage and loss of profit), legal and other costs in connection with defending the aforementioned claims and/or proceedings.
18 Force majeure/hardship
18.1 The following are conventionally considered as cases of force majeure or hardship: all circumstances which at the time of the conclusion of the agreement were reasonably unforeseeable and unavoidable, and which make it impossible for MEYLAND/the Customer to implement the agreement, or part thereof, or which would make the implementation financially, or otherwise, more onerous or difficult than is normally the case, as a result of which performance under the agreed conditions can no longer reasonably be demanded (including, but not limited to, war, natural circumstances, fire, confiscation, delays by or bankruptcy of suppliers of MEYLAND, illness, shortage of staff, strike, lock-out, pandemics and epidemics, late shipping, change of customs tariffs, company organisational circumstances, threats and acts of terrorism, the failure of the Customer to provide MEYLAND with the information necessary for the execution of the assignment, obtaining false information).
18.2 If MEYLAND and/or the Customer, due to a situation of force majeure or hardship, are temporarily unable to perform (part of) the agreement or an assignment, they shall be entitled to temporarily suspend the performance of its obligations by notifying the Other Party by registered letter. In this case, the implementation period shall be extended for a period equal to that of the suspension. Neither the Customer nor MEYLAND shall be liable to pay any compensation in such a case.
18.3 In the event that the execution of (part of) the agreement or an assignment has become definitively impossible due to force majeure and/or hardship or has been suspended for more than six (6) months in accordance with Article 18.2, the Customer and MEYLAND shall meet to determine the conditions under which the agreement can be continued. In the absence of agreement after the Customer and MEYLAND have negotiated in good faith for at least one (1) month, both the Customer and MEYLAND shall be entitled to terminate the agreement or the assignment in question by serving immediate notice on the other party by registered letter.
19 Intellectual property
19.1 MEYLAND shall retain all intellectual rights, including but not limited to patents, drawings and models, copyrights, rights in databases, trade secrets, rights in know-how, trademark rights, rights in (trade/product) names, etc., to the documents, templates, technical descriptions, plans, drawings, models, samples or photographs (non-exhaustive list) that it has drawn up, whether or not the Customer has been charged for its production.
19.2 No quote, order, agreement or collaboration can be interpreted as meaning that the Customer shall acquire any property right or other exclusive right to the aforementioned data. As long as these data were not made publicly available by MEYLAND , they may not be copied, used for purposes other than those for which they are intended, or shown to third parties without the prior written consent of MEYLAND , and must be immediately returned to MEYLAND on simple request.
19.3 MEYLAND is entitled to use pictures of completed projects for publicity purposes, without any compensation or permission being due to the Customer. MEYLAND shall always inform the Customer hereof and refrain from any publication if the Customer opposes this.
19.4 The Customer undertakes not to take any action that would be in conflict with, or invalidate, MEYLAND’s intellectual property rights, nor will it allow a third party to do so.
19.5 The Customer shall refrain from participating in full or in part in, or authorising others to participate in reverse engineering, disassembly or decompilation of the Machinery/Goods and/or Services, unless and insofar as this is expressly permitted by applicable mandatory law.
19.6 The Customer also undertakes to take the necessary steps to prevent any infringement of MEYLAND’s intellectual property rights and to notify MEYLAND when it becomes aware of an actual or suspected infringement.
19.7 Any infringement of this clause by the Customer shall give rise to the payment of fixed damage compensation amounting to 50% of the price of the Machinery and/or Goods and/or Services, without prejudice to compensation for additional proven damage.
20 Non-poaching clause
20.1 From the establishment of the agreement until twenty-four (24) months after its termination, the Customer shall refrain (both directly and indirectly) from encouraging MEYLAND’s personnel or independent service providers to terminate its ties with MEYLAND and/or to enter into an agreement with the same. For the purposes of this article, the term “personnel” means all personnel or other persons such as “freelancers” and subcontractors provided by MEYLAND.
20.2 If the Customer infringes this article, it shall be obliged to compensate MEYLAND for the damage suffered as a result. This compensation shall be equal to the gross remuneration (direct or indirect) for the preceding twenty-four (24) months of the staff member concerned, without prejudice to MEYLAND’s right to compensation for any additional proven damage.
21.1.1 The processing of personal data by MEYLAND relating to a (potential) Customer shall take place in accordance with the Privacy Legislation. In this context, MEYLAND acts as controller.
22.1.1 Both parties and their staff and employees – for which the parties make every effort – undertake not to disclose, distribute or use any confidential information (including price lists) concerning the other party and the execution of the agreement between the parties to third parties without the express written consent of the other party.
23.1 In accordance with the Act on Financial Securities of 15 December 2004, MEYLAND and the Customer shall automatically and by operation of law offset all current and future claims with regard to each other. This means that in the permanent relationship between MEYLAND and the Customer, only the largest debt remains after the aforementioned automatic offsetting.
23.2 In any case, this debt offsetting shall be enforceable against the administrator and the remaining body of creditors, and no objection will be possible against this debt offsetting implemented by the parties.
24 Competent Court and applicable law
24.1 All disputes arising from these GTC as well as from any other agreement concluded between MEYLAND and the Customer shall fall within the exclusive jurisdiction of the courts of the district in which MEYLAND has its registered office, unless MEYLAND decides that the courts of the district in which the Customer has its registered office have jurisdiction.
24.2 Belgian law shall apply.
25.1 Unless explicitly agreed otherwise, the Customer acknowledges that the language used in these GTC shall also be the working language of all commercial transactions with MEYLAND. The Dutch version of these GTC is the only authentic version. Translations or documents drawn up in another language are always a mere modality towards the Customer. II. SPECIAL PROVISIONS PERTAINING TO THE SALE OF MACHINERY AND GOODS
Section II applies to the sale of Machinery and Goods by MEYLAND
26 Implementation of the Agreement
26.1 MEYLAND guarantees the proper execution of the order/assignment, whereby MEYLAND will always exercise due care and good faith.
27 Made to Measure Machinery
27.1 The Customer bears the final responsibility for the instructions it supplies. MEYLAND shall take over the instructions from the Customer without accepting any responsibility in this respect. If the specifications of the Machinery still change after the conclusion of the agreement, MEYLAND shall be entitled to pass on any additional costs to the Customer, in particular if the order has already been placed, production has already started, or in the event of a change of dimensions only becomes apparent during processing.
27.2 Except in the case of wilful misconduct or gross negligence on the part of MEYLAND, any problems or delays arising during the implementation as a result of the absence of timely information or assistance on the part of the Customer will extend the delivery term and increase the price by the corresponding additional costs.
27.3 If MEYLAND has to rely on a design made by MEYLAND for the execution of a delivery, MEYLAND will only commence production of the Machinery when it has obtained the written approval of the Customer with regard to the design.
28 Delivery of the Machinery and/or Goods
28.1 Unless expressly agreed otherwise, for example when MEYLAND is responsible for the assembly and installation of the Machinery in accordance with Article 36 and/or MEYLAND is responsible for the transport in accordance with Article 28.3, the Machinery and/or Goods shall always be delivered EX WORKS (Incoterms® 2020) at MEYLAND’s company premises.
28.2 The transfer of the risk of damage, destruction and disappearance with regard to the Machinery and/or Goods, at the time of delivery of the Machinery and/or Goods. Any costs for the reception of the Machinery and/or Goods shall always be at the Customer’s expense.
28.3 The Customer must cooperate in the delivery and take delivery of the Machinery and/or Goods at the address of MEYLAND’s registered office at the agreed time. However, if the Customer so requests in writing, MEYLAND shall, at the Customer’s expense, arrange for the transport of the Machinery/Goods to the address provided by the Customer. The way in which the transport takes place and the actual means of transport are determined by MEYLAND in all reasonableness.
28.4 If the Customer refuses the delivery or is negligent in providing information or instructions, or with any other cooperation necessary for the transport of the Machinery and/or Goods, MEYLAND shall be entitled to take all relevant measures (such as storage by third parties), on behalf of and at the risk of the Customer. All storage costs in the event of late collection, in any case including but not limited to transport and storage costs, shall be at the Customer’s expense. If the Customer requests this in writing, MEYLAND shall ensure, at the expense of the Customer, that the Machinery and/or Goods are insured.
28.5 MEYLAND shall hand over to the Customer, or make available to the Customer, where applicable, the necessary copies of the guarantee provisions, the user manual and installation instructions relating to the delivered Machinery and/or Goods, at the latest prior to the start-up of the operation of the Machinery and/or Goods. It is the Customer’s obligation to ensure that a copy of these documents is always present in the vehicle in which the Machinery and/or Goods are transported.
29 Retention of title
29.1 The Machinery and/or Goods supplied by MEYLAND, even if they have been processed and have, as such been incorporated, shall remain the property of MEYLAND until full payment of the amount due (principal sum, interest and costs) by the Customer.
29.2 The Customer is therefore forbidden to either sell or pledge the delivered Machinery and/or Goods to a third party or to have access to them in any way, as long as the price has not been paid in full. In the event of non-compliance with this prohibition by the Customer, a fixed compensation of 50% of the price due shall be payable, with a minimum of two hundred and fifty euros (€ 250). If the Machines and/or Goods are nevertheless sold to a third party, the right to the resulting selling price will replace the sold Goods.
29.3 Parties agree that the various transactions/contracts between them shall be considered parts of one single economic whole, and that MEYLAND shall always retain title of the Machinery and/or Goods currently in the possession of the Customer, as long as the Customer has outstanding debts towards MEYLAND.
30 Complaints & Warranty
30.1 Non-conformity/visible defects
30.1.1 Unless expressly agreed otherwise, for example when MEYLAND is responsible for the installation of the Machinery in accordance with Article 36, the Customer must carry out an initial verification immediately upon delivery, which includes: correct location(s), quantity, dimensions, colour, finish, conformity of the delivery and visible defects. Under penalty of forfeiture, complaints will only be taken into consideration if the Customer has stated them on the signed CMR letter from the carrier, or, in the absence thereof, submits them in writing or electronically to MEYLAND within a period of 48 hours after delivery of the Machinery and/or Goods and/or in the event of a visible defect that is only visible when the Machinery and/or Goods are rolled out within a period of 48 hours after the defect has been established.
30.1.2 If no complaints are communicated within said periods, the Customer shall be deemed to have accepted the delivery of the Machinery and/or Goods.
30.2 Commercial guarantee
30.2.1 Notwithstanding Article 30.3, and with the exception of non-conformities and/or visible defects in accordance with Article 30.1. MEYLAND shall provide a commercial guarantee on the delivered Machinery and/or Goods in accordance with the guarantee provisions, user manuals and/or installation instructions supplied with the Machinery and/or Goods following the invoice date or the date of final acceptance in the event of assembly and installation of Machinery by MEYLAND in accordance with Article 36, provided that (i) the damage does not fall under the exclusions of MEYLAND’s liability as set out in Articles 17 and 31 , and (ii) the defect has been transmitted to MEYLAND in writing or electronically within a period of 1 month after the Customer has ascertained the defect.
30.2.2 Except for deviating provisions in the supplied guarantee provisions, user manuals and/or installation instructions, a maximum guarantee is given on the delivered Machinery of 12 months or 2080 running hours commencing at the moment of (i) delivery if the Customer carries out the assembly/installation himself or has it carried out by a third party or (ii) final delivery if MEYLAND is responsible for the assembly/installation of the Machinery.
30.3 Hidden defects and product liability
30.3.1 The commercial guarantee (in accordance with Article 30.2) is without prejudice to the Customer’s rights (i) on the grounds of hidden defects (cf. Article 1641 et seq. Civil Code) on the condition that the defect has been notified by the Customer to MEYLAND in writing or electronically within a period of 1 (one) month after delivery of the Machinery and/or Goods, or during the trial run in accordance with Article 37.3.2 and (ii) pursuant to the Belgian Act of 25/02/1991 on liability for defective products.
30.3.2 If MEYLAND acts as producer of the Machinery and/or Goods, it is liable, in accordance with the Act of 25/02/1991, for damage caused by a defect in the Machinery and/or Goods, in particular the damage caused to persons (caused to any person using the Machinery and/or Goods), including moral damage, and damage caused to goods (less an excess of € 500), with the exception of the damage caused to the defective Machinery and/or Goods themselves. In the event that MEYLAND is held liable pursuant to the aforementioned Act, MEYLAND shall not be liable if:
– The damage was caused by the fault of the victim or a person for whom the victim is responsible, including where the damage is clearly the result of misuse of the Machinery and/or Goods, and
– The damage was caused by a defect which did not exist at the time the Machinery and/or Goods were put into circulation, nor if it was impossible to detect the existence of the defect.
The victim’s right to obtain damages lapses after a period of 10 years, counting from the day on which the Product was put into circulation. The victim’s claim lapses after 3 years, counting from the day on which they should reasonably have known about the claim.
30.3.3 In case a recall is organised with regard to the delivered Machinery and/or Goods, the Customer is obliged to cooperate and is not allowed to further distribute the Machinery and/or Goods. No claim to indemnification by MEYLAND can be withheld for damage caused by the further distribution of the Machinery and/or Goods after such recall campaign.
31.1 Without prejudice to the general nature of Article 17, the guarantees offered by MEYLAND to the Customer shall, at MEYLAND’s discretion, be limited to (in whole or in part): (i) replacement, (ii) repair or modification, or (iii) crediting of the Machinery and/or Goods to the Customer suffering the defect, whether or not linked to recall (at MEYLAND’s discretion).
31.2 If it is agreed that the Customer shall carry out the assembly/installation of the Machinery and/or Goods purchased from MEYLAND itself or have it carried out by a third party, this shall take place under the full responsibility and at the risk of the Customer. In such cases, MEYLAND can in no event be held liable for any direct or indirect damage arising from the installation/assembly of the Machinery and/or Goods. III. SPECIAL PROVISIONS RELATING TO THE PERFORMANCE OF SERVICES
Section III. applies to the performance of Services by Meyland (such as, but not limited to, the design and engineering of Machinery, the performance of studies and drawings and the installation of Machinery).
32 Implementation of the Agreement
The performance of Services is generally regarded as an obligation to perform to the best of one’s abilities. MEYLAND shall at all times exercise due care and good faith and shall carry out the order/assignment to the best of its knowledge and ability, but without guaranteeing any particular result. In the exceptional event that MEYLAND undertakes to achieve a certain result in respect of the Customer, there shall be an obligation to achieve a certain result on the part of MEYLAND and this shall be expressly stated in writing between the parties.
Unless otherwise agreed, all complaints regarding the performance of Services by the Customer must be reported in writing, with additional justification, no later than at the time of completion of the Services.
34.1 Without prejudice to the general nature of Article 17, MEYLAND’s liability shall in any event be limited – at MEYLAND’s discretion – to the (re)performance of the missing or defective Services.
34.2 If the parties decide that the re-performance of the Services is not (or no longer) possible or useful, the Customer is entitled to a refund of the price of the missing or defective Services.
35 Special rules relating to the design and engineering of Machinery
35.1 The delivery is taken to mean the completion of the assignment and by making available the documents, designs, templates, technical descriptions, plans, drawings, models, samples or photographs (hereinafter “design(s)”) drawn up for the Customer.
35.2 As soon as the Customer takes possession of the design, it is obliged to verify the accuracy of the design and examine whether it corresponds with its original intention.
35.3 Unless otherwise agreed, the Customer shall have a period of 7 calendar days, commencing on the day of delivery, to notify MEYLAND of full or partial acceptance or refusal of the assignment and Design delivered. Any total or partial rejection must be adequately justified in a registered letter by the Customer. The absence of any reaction on the part of the Customer within the aforementioned period shall imply approval of the design.
36 Special rules concerning the assembly and installation of the Machinery by MEYLAND
36.1 Execution of assembly/installation and liability
36.1.1 If it is agreed that MEYLAND shall be responsible for the assembly/installation of the Machinery, MEYLAND shall only accept liability with regard to the assembly/installation of the Machinery, insofar as the place of assembly/installation has been made normally accessible by the Customer and all facilities, provisions and/or local circumstances have been prepared by the Customer in such a way that no circumstances can arise which make a correct assembly/installation more difficult and/or disrupt it.
36.1.2 Without prejudice to the above provisions, the Customer shall in any case take care of this at its own expense and risk:
– MEYLAND’s personnel, as soon as they have arrived at the assembly/installation site, may commence and continue their work during normal working hours and, if MEYLAND deems it necessary, outside normal working hours, provided they have informed the Customer of this in good time;
– the access routes to the assembly/installation site are suitable for the necessary transport and that the Machinery can be brought inside in its entirety;
– the ground is sufficiently solid and stable to allow safe positioning and use of cranes, aerial work platforms and telescopic handlers;
– the designated place of installation is well lit and suitable for assembly/installation of the Machinery;
– MEYLAND’s staff are adequately informed about the work in progress and the risks involved;
– the necessary help, if requested by MEYLAND, and the material necessary for the assembly/installation is available.
If the commencement or progress of the assembly/installation of the Machinery is delayed for reasons for which the Customer is responsible, all resulting costs (including, but not limited to, unnecessary travel costs and waiting times of more than half an hour) shall be charged to the Customer by MEYLAND.
36.1.3 Under no circumstances can MEYLAND be held liable for any damage to the work floor, aboveground and/or underground. For any other damage that may be caused during assembly/installation by MEYLAND’s appointees, the Customer may under no circumstances deduct the amount of the damage from the invoices to be paid.
36.1.4 MEYLAND’s insurance company will take care of the further processing. Any claim for damages must be notified to MEYLAND by registered letter within 24 hours of the execution of the work that gave rise to the damage.
36.2.1 If MEYLAND itself is responsible for the assembly/installation of the Machinery, this shall be deemed to have been provisionally delivered at the moment that MEYLAND has notified the Customer that the assembly/installation has been completed and the Customer has accepted it. The assembly will in any case be regarded as provisionally completed when:
– 8 calendar days have elapsed since the Customer received notification from MEYLAND that the works have been completed and the Customer has not submitted any written comments to MEYLAND within this period;
– the Machinery has been put into operation;
– the Customer does not approve the assembly/installation on the grounds of minor defects or missing parts that do not prevent the Goods from being put into operation.
36.2.2 As soon as provisional acceptance has taken place, the trial run will start for a period of 20 working days, taking into account that the trial run can only take place during the day between 7.30 a.m. to 4.15 p.m. During that test run, it must be checked whether the Machinery functions as agreed and whether there are any hidden defects that impede the working order of the Machinery. If, instead of fully respecting the trial period, the Customer immediately uses the installation for its production, the final completion will take place immediately at the start of the commissioning of the installation.
36.2.3 As soon as the trial run period has expired and insofar as the Customer has not submitted any written comments to MEYLAND during that period regarding defects preventing the normal use of the Machinery, the Machinery shall be deemed to have been definitively completed. The commercial guarantee in accordance with Article 31.2 only applies from the moment of final completion.
36.2.4 In any case, the Machinery shall be considered to be definitively completed when 8 calendar days have elapsed since MEYLAND’s notification that it has remedied the shortcoming or malfunctioning of the Machinery. IV. SPECIAL PROVISIONS CONCERNING THE MAINTENANCE OF THE MACHINERY AND REPAIR AND/OR REPLACEMENT
37.1 MEYLAND is committed:
– To the best of its ability and understanding, to be responsible for the specific maintenance of the Machinery or the 24/7 service, but MEYLAND does not under any circumstances guarantee that the Goods will function at all times;
– To take all necessary safety measures in order to safeguard the safety in general at the Customer’s establishment with regard to the execution of the Services. In particular, to ensure that measures relating to the health and safety of persons involved in the performance of the Services are in place. In this respect, to take all appropriate preventive measures, in accordance with the Act of 4 August 1996 on the Welfare of Employees and the Codex on the Welfare at Work during the execution of the Services;
– To have given its personnel assigned to the execution of the Services the necessary instructions and guidelines to allow them to carry out the Services in complete safety.
37.2 The Customer undertakes to:
– Ensure that the access routes to the Goods are suitable for the necessary transport and are freely accessible and without danger to MEYLAND and its appointed personnel;
– Sufficiently illuminate the place where the Machinery is located and do what is necessary to enable the execution of the Services;
– Inform its employees about the execution of the Services, including the time and manner of execution and the possible risks associated with this.
37.3 MEYLAND and the Customer shall determine in mutual written consultation which procedures must be followed if it should transpire that the Customer’s Machinery must be stopped in order to enable the Services to be performed.
37.4 If the commencement or progress of the Services or the 24/7 service (see Article 39) is delayed for reasons for which the Customer and/or its personnel is responsible, all resulting costs (including unnecessary travel costs and waiting times of more than half an hour) shall be charged to the Customer by MEYLAND, with a minimum of €125.
37.5 Special provisions relating to the maintenance of the Machinery shall be the subject of a special maintenance agreement to be concluded between MEYLAND and the Customer.
38 Specific maintenance and repairs/replacements on demand
38.1 In the event the Customer wishes to call upon MEYLAND for either (i) a specific maintenance to a piece of Machinery, or (ii) the execution of a repair and/or replacement to a piece of Machinery, or (iii) other Services, which are not the subject of a special agreement between MEYLAND and the Customer, it can always contact MEYLAND, including scheduling the aforementioned Services on demand.
38.2 Unless expressly agreed otherwise in writing, the Customer acknowledges that these Services take place during the working week (i.e. from Monday to Friday, excluding all Belgian public holidays and holiday periods) and during normal working hours (i.e. from 7.30 a.m. to 4.15 p.m.).
38.3 The price owed by the Customer is a price under control, per hour of work performed. The applicable rates shall be those set out in the price list valid at the time the Customer calls upon MEYLAND for the aforementioned Services.
38.4 When, as a result of the performance of these Services, it becomes clear that (final) repairs are necessary and/or parts need to be replaced, 2 options are available: (i) the Customer is responsible for the order/purchase of the spare parts or (ii) MEYLAND is responsible for the order/purchase of the spare parts, whereby it will in principle, submit a quote to the Customer in advance. However, if the Customer expressly indicates in writing (e.g. by e-mail) that MEYLAND may already order the required spare parts, MEYLAND shall not submit a quote and shall go ahead and carry out the repair and/or replacement.
39 24/7 service
39.1 MEYLAND will provide support to the Customer through a service desk that is open 24 hours a day, 7 days a week. The Customer can report incidents by telephone on the following number: +32 9 376 76 00 and must provide as much information as possible regarding the incident. If MEYLAND so requests, the Customer must also e-mail a sketch or photograph of the incident.
39.2 The price owed by the Customer is a price under control, per hour of work performed. The rates shall be those that apply to price list valid at the time the Customer calls upon MEYLAND for a 24/7 service.
39.3 MEYLAND reserves the right to charge the start-up fee for the 24/7 service as shown in the aforementioned price list.
39.4 For the proper execution of the 24/7 service, the Customer undertakes to purchase a starter pack – consisting of the main basic parts of the Machinery – from MEYLAND and to supplement it at all times when one of the parts is used. Only when purchasing the starter pack is MEYLAND able to offer the Customer an emergency solution as part of the 24/7 service. If one or more spare parts from the starter pack are used by MEYLAND within the framework of the execution of the 24/7 service, the Customer undertakes to repurchase these spare parts at short notice in such a way that the starter pack is once again complete with a view to future interventions.
39.5 The Customer acknowledges that MEYLAND’s intervention in the context of the 24/7 service is only a stop-gap solution and that MEYLAND in no way guarantees any final solution. In any event, MEYLAND’s liability shall be assessed in the light of the obligation of means it undertakes to remedy the incident as soon as possible and tailored to the nature of the incident. Under no circumstances can MEYLAND be held liable if an appropriate solution cannot be found immediately.
39.6 Notwithstanding Article 37.4, MEYLAND shall pass on to the Customer all costs incurred as a result of an unjustified notification of an incident.