Scope of these general terms and conditions

1. These general terms and conditions (the ‘General Terms and Conditions’) govern the contractual relationship between Smans nv, with registered office at Bremheidelaan 8, 2300 Turnhout, Belgium, and known under company number 0462.377.719 (‘Smans’) and the Customer as stated on an order form, quotation, agreement or any similar document or contractual arrangement (the ‘Customer’). Smans and the Customer are each referred to individually as a ‘Party’ and collectively as the ‘Parties’.
2. For the purposes of these General Terms and Conditions, a ‘Quotation’ means any document issued by Smans in which the delivery of goods and any associated services to the Customer is proposed, and an ‘Order Confirmation’ means any order confirmation drawn up by Smans. These General Terms and Conditions form an integral part of, and apply to, any Quotation to the Customer. The Quotation and the General Terms and Conditions together form the ‘Agreement’. The Customer’s acceptance of the Quotation implies the irrevocable acceptance of these General Terms and Conditions, regardless of any previous correspondence or other conditions communicated by the Customer. Provisions in documents of the Customer that exclude the application of these General Terms and Conditions shall not apply. Deviations from these General Terms and Conditions are only valid if expressly accepted in writing by Smans. In the event of any conflict between these General Terms and Conditions and the Quotation, the General Terms and Conditions shall prevail unless the Quotation explicitly states that deviations from the Quotation take precedence over the General Terms and Conditions.
3. Each Quotation is valid for a period of thirty (30) calendar days after the date of the Quotation, unless otherwise stated in the Quotation. After this period has expired, the Quotation shall lapse by operation of law.

Delivery and terms

1. Unless otherwise stated in the Order Confirmation, Smans shall deliver the goods, materials and supplies as specified in the Quotation (the ‘Goods’) in accordance with Ex Works (EXW) Incoterms (2020).
2. The delivery periods included in the Quotation are always purely indicative. The delivery periods stated in the Order Confirmation are target dates and may be taken as a starting point by the Customer. Delays in delivery or execution shall in no case entitle the Customer to claim compensation or to suspend or set off its payment obligations.
3. If, in exceptional cases, delivery free of charge to the Customer’s site or warehouse has been accepted in writing by Smans, Smans (as well as its subcontractors and appointees) is only obliged to deliver to that location if it is normally accessible. If this is not the case, the Goods will be unloaded at the nearest location next to the means of transport. From the moment of unloading, the Customer bears the risk of loss of or damage to the Goods.

Retention of title

1. All Goods remain the property of Smans until full payment of all invoices by the Customer, in principal and incidental costs. This retention of title remains applicable if the Goods are only part (incidental) of a larger whole (main thing) of which Smans is not the owner, or if the Goods are resold or processed by the Customer into another good. However, all risk shall pass to the Customer at the moment the Goods leave Smans’ warehouses. From that moment on, the Customer shall be liable for damage to and disposal of these Goods. The Customer undertakes to respect Smans’ retention of title and to inform third parties thereof.

Acceptance of the Goods

1. The Customer is obliged to check the Goods immediately upon delivery for visible defects and conformity with the Quotation. In the absence of written comments within five (5) calendar days of delivery, the Goods shall be deemed to have been fully accepted, free of visible defects and in conformity with the Quotation. The use of the Goods by the Customer shall in any case constitute irrevocable and full acceptance of the Goods.
2. Dimensions, weights, colours, drawings, sketches, plans, catalogues, websites and other documents or information are for information purposes only and are not binding, unless expressly stated otherwise in the Quotation.

Force majeure

1. Any unforeseeable circumstance beyond Smans’ control that wholly or partially prevents the performance of its obligations or makes performance unreasonably difficult, shall be considered force majeure. This includes extreme weather conditions, accidents, wars and their consequences, labour disputes, riots, uprisings, embargoes, strikes, lockouts, legal restrictions, government regulations, pandemics, epidemics, shortages of labour, components or materials, cyber attacks, disruptions or transport problems, both at Smans and at its suppliers.
2. In the event of force majeure, Smans is entitled to temporarily suspend its obligations or to terminate the Agreement in whole or in part, without being liable for any compensation.
3. The delivery period shall be automatically extended by the duration of the force majeure, plus a reasonable period necessary to resume performance.

Payment

1. All Smans invoices are payable in euros, within the period specified in the invoice and, failing that, within thirty (30) calendar days of the invoice date. The Customer accepts that invoices will be sent electronically.
2. All prices are exclusive of VAT, levies, taxes and insurance costs. All these costs are borne by the Customer.
3. In order to be valid, any protest against an invoice must be made by registered letter to Smans’ registered office within eight (8) calendar days of the date of dispatch of the invoice. After this period, the invoice shall be deemed to have been definitively accepted. The invoice date shall be irrefutably presumed to be the date of dispatch of the invoice. Payment of the invoice without protest within the specified period shall always and without exception constitute sufficient proof of the services provided.
4. Smans reserves the right to demand an advance payment or any other appropriate guarantee from the Customer before accepting an order or during its execution. This applies both in the context of Smans’ general credit policy and in the event that the Customer’s financial situation deteriorates or confidence in the Customer’s creditworthiness is shaken, for example by acts of judicial enforcement or similar events. If the Customer fails to provide the requested guarantee, Smans is entitled to cancel current and future orders.
5. If the Customer fails to pay an invoice in full within the payment term, the entire outstanding amount shall be immediately due and payable without further notice of default. In the event of late payment, the Customer shall be liable by operation of law and without notice of default for default interest as provided for in Article 5 of the Act of 2 August 2002 on combating late payment in commercial transactions, as well as (in deviation from Article 6, first paragraph of the aforementioned Act) a fixed compensation of ten per cent (10%) on the principal amount due, with a minimum of 125 euros.
6. Any delay in payment by the Customer may give rise to the suspension or cancellation of orders to be executed by Smans, without any compensation being due. Under no circumstances shall Smans be obliged to deliver if the price has not been paid in full.
7. Smans is also entitled to suspend its obligations or terminate the Agreement if the Customer is in default of payment, is insolvent, is the subject of judicial reorganisation proceedings, or has been declared bankrupt.

Liability

1. Smans is not liable for loss, damage or destruction of the Goods caused by any fault of the Customer, its personnel or third parties, including those for whom the Customer is responsible or whom it has admitted to the place of delivery or performance. The Customer shall fully indemnify Smans against all claims from third parties in this regard.
2. If Smans is held liable, its liability shall in any case be limited to the invoice amount of the Goods concerned. Smans shall in no event be liable for indirect damage, including consequential damage, loss of profit, damage to reputation, replacement costs or commercial losses.
3. The Parties expressly exclude the conventional concurrence of liability as referred to in Article 6.3, §1 of the Civil Code. They undertake to hold each other liable exclusively on a contractual basis for damage arising from or related to the performance of this Agreement. In addition, the Parties agree that Article 6.3, §2 of the Civil Code does not apply. The legal provisions regarding non-contractual liability cannot be invoked between a Party and the directors, employees, appointees, subcontractors, representatives or other auxiliary persons of the other Party for damage resulting from or related to the performance of this Agreement. These exclusions do not apply in the event of an attack on physical or psychological integrity or of a fault committed with the intention of causing damage.
4. Smans is not liable for defects of any kind in the Goods it delivers that it has not manufactured itself, insofar as the defects (i) are not exclusively the result of gross negligence or intent on the part of Smans and (ii) were not known to Smans. In this case, the Customer may only seek redress from the manufacturer or supplier concerned.

Warranty

1. Smans’ warranty to the Customer with regard to the Goods is limited to the warranty it obtains from the manufacturer or supplier(s) of the Goods concerned. This warranty is passed on to the Customer under the same conditions. Unless otherwise stated in the Quotation, the warranty shall expire on the earlier of the following dates: (i) twelve (12) months after the delivery date; or (ii) after 1,800 hours of use of the Goods. For Goods that have been configured, modified or customised by or on behalf of Smans (‘Rebuild Machines’), the warranty is limited to a period of two (2) months.
2. Transport costs and working hours are not covered by the warranty and are at the expense of the Customer, unless expressly stated otherwise by the manufacturer or supplier concerned.
3. The warranty only applies if the Goods have not been modified, processed or treated, and provided that they are used by the Customer under normal circumstances and as a normal, careful and prudent person. The warranty only applies upon presentation of the invoice, the Order Confirmation or a warranty certificate provided by Smans.
4. The warranty is excluded in the following cases: (i) damage, malfunctions or defects in the Goods resulting from a fault on the part of the Customer, accident, improper or incompetent use or maintenance, non-compliance with instructions or conditions of use, or exposure to external influences such as lightning, humidity, power surges or other cases of force majeure; (ii) if the Goods have been modified, repaired, opened or connected to other equipment by the Customer or by third parties not designated by Smans, or if serial numbers or markings have been removed or falsified; (iii) if the Customer does not use the Goods in accordance with Smans’ terms of use, or if the Customer has failed to meet its payment obligations; and (iv) with regard to second-hand machines, parts made of rubber, PVC or based on these materials, lamps, lenses, and in the event of wear and tear or deterioration that is considered normal.
5. Only if the defect is covered by the warranty and existed at the time of delivery will Smans remedy this within a reasonable period of time. Smans shall decide at its own discretion whether to (i) have the Goods returned for repair or replacement, (ii) repair the Goods on site during working hours, or (iii) credit the Customer for the Goods in question, whereby the compensation may never exceed the price paid by the Customer for the Goods in question.
6. Other visible defects and defects in conformity with the Quotation must be reported by the Customer to Smans in writing and by registered letter within five (5) calendar days of their discovery. Only if the defect is covered by the warranty will Smans remedy it within a reasonable period of time, whereby Smans shall decide at its own discretion on one of the repair options as specified in Article 29.
7. Smans is not obliged to indemnify against foreclosure, except in the event of foreclosure that is the direct result of an error or attributable shortcoming on the part of Smans.

Intellectual property rights

1. All intellectual property rights relating to the delivered Goods and any associated services, as well as drawings, plans, works, manuals, software, other documents or similar related thereto, remain the exclusive property of Smans, the manufacturer concerned or any other entitled party. Intellectual property rights are understood to mean: all possible rights, titles and claims to creations, inventions, developments, technologies, signs or data, in the broadest sense of the applicable law, including but not limited to: patents, patent applications, models, drawings, copyrights, database rights, software, rights to know-how, trade secrets, trademarks, domain names, trade names, and all related applications, extensions or renewals, whether registered or not.
2. The Customer only acquires a non-exclusive, non-transferable, non-sublicensable and revocable licence to use the delivered Goods, limited to the Customer’s normal internal use thereof. Smans does not guarantee any rights that it does not itself possess or is not legally entitled to grant.
3. The Customer shall fully indemnify Smans and its suppliers against all claims from third parties arising from an infringement of intellectual property rights caused by the use, modification, processing or handling of the Goods by or on behalf of the Customer that has not been expressly authorised in writing by Smans.
4. The Customer agrees that Smans may use the Customer’s name and logo as a reference for promotional and commercial purposes, including mention of the Goods purchased by the Customer.

Non-solicitation

1. The Customer shall refrain from directly or indirectly (attempting to) solicit personnel, employees, self-employed persons or other persons working for Smans during the term of the agreement and for twelve (12) months thereafter. In the event of a breach, the Customer shall owe Smans a fixed compensation equal to twelve (12) months’ gross salary or remuneration as paid by Smans to the person concerned during the last twelve (12) months of the collaboration.

Confidentiality

1. Each Party undertakes to treat all information of a confidential nature that it receives from the other Party, whether expressly designated as such or whose confidentiality can reasonably be inferred, as strictly confidential and not to use it for any purpose other than the performance of the Agreement. The content of the Agreement itself shall be considered confidential information. This obligation shall remain in force for a period of five (5) years after termination of the Agreement, except for trade secrets, for which the obligation shall remain in force for as long as this information remains confidential or until it is disclosed by the providing Party.
2. The confidentiality obligations shall not apply to information that (i) is or becomes generally known without breach of this Agreement, (ii) was already lawfully in the possession of the receiving Party prior to disclosure, (iii) was demonstrably developed independently by the receiving Party without the use of confidential information from the other Party, or (iv) was lawfully obtained from a third party who is not bound by a confidentiality obligation.

Termination

1. Either Party may terminate the Agreement at any time by giving written notice. In the event of termination by the Customer or termination by Smans due to the Customer’s default, the Customer shall remain liable for payment of (i) all Goods already delivered and services already performed; (ii) all costs already incurred and commitments already entered into by Smans, including any advances requested; and (iii) a fixed compensation of twenty per cent (20%) of the total amount of the Agreement, excluding VAT. For Rebuild Machines, the Customer shall owe all costs incurred in full from the moment Smans has incurred costs to fulfil the Customer’s order, regardless of the time of termination. In the event of termination by Smans without the Customer being in default, Smans shall refund any amounts already paid insofar as these do not relate to Goods already delivered or services already performed, costs already incurred or commitments already entered into.

Applicable law and competent court

1. This Agreement is governed exclusively by Belgian law, to the exclusion of the Vienna Sales Convention and without application of the conflict rules of private international law. All disputes fall under the exclusive jurisdiction of the courts of Antwerp, Antwerp division.

Final provisions

1. No failure or delay in the exercise of rights by Smans under this Agreement shall be construed as a waiver thereof. The invalidity or unenforceability of any provision shall not affect the validity and enforceability of the remaining provisions, and the provision in question shall be replaced or limited to the minimum necessary to make it valid and enforceable. The Customer may not transfer the Agreement or the rights and obligations arising from it without the prior written consent of Smans. This Agreement contains the entire agreement between the Parties and supersedes all previous agreements. Smans processes personal data in accordance with its privacy statement.