5. Delivery: delivery is deemed to have been made at the workshops of Focquet SA, either by handing the goods over directly to the customer, or to a forwarding agent or haulage contractor designated by the customer or, failing such designation within three days, by Focquet SA, at the customer’s sole risk. The principle of delivery by Focquet SA is not subject to any derogation due to indications such as: free on rail, free alongside, free domicile, or reimbursement of transport expenses, which should only be considered as concessions concerning price, and not as implying any transfer back of responsibility. If the customer fails to take delivery within the prescribed period, in the event of a sale, he shall pay Focquet SA, the fixed amount of 125 euro per day of demur for storage charges, starting from the date when he has been requested to take delivery until complete collection, or until the date when the contract is terminated through the courts due to the customer’s fault. In the event of hire, Focquet SA may consider the contract terminated by right if the customer does not take delivery of the equipment hired within three days of being requested to take delivery. In this case, a minimum amount of compensation of 50% of the price of the hire contract will be payable by the customer for breach of contract, without prejudice to the right of Focquet SA to prove that the prejudice actually sustained is higher than this minimum compensation, and to demand payment.
6. Performance or delivery periods: performance or delivery periods commence from the date of unreserved acceptance of the offer, and will be respected as far as possible, except in case of force majeure or unforeseeable events beyond the control of Ets. Focquet, such as strikes, requisition, etc.
Delays in performance or delivery do not result in an obligation for Focquet SA to pay any compensation, and can never justify the cancellation of the order by the customer.
- In the event of sale and provided that there is a specific clause to this effect in the specific conditions, penalties may only be imposed on Focquet SA starting from three full weeks of delay, and will be at most equal to 0.5% of the net selling price per additional full week, with a maximum ceiling of 5% of the selling price excluding VAT, and provided that the customer is able to prove that this delay caused him actual prejudice.
- In the event of hire, the contract commences on the date of shipment and ends on the date when the material is returned to the workshops of Focquet SA, in perfect working order and perfectly clean. Failing that, all cleaning costs of the equipment and/or reconditioning expenses will be invoiced by Focquet SA to the customer. In addition, delivery will only occur after the hirer has paid Focquet SA a deposit equal to the value of the equipment hired.
7. Transfer of risks and ownership: the risks relating to the material purchased or hired is transferred to the customer once he has accepted the offer. In the event of a sale, Focquet SA retains title to the equipment sold until full and final settlement of the price in principal and ancillary charges. In the event of hire, the hirer will inform Focquet SA immediately of any seizure by a third party and must immediately provide that third party with the hire contract proving that the hired equipment is the exclusive property of Focquet SA. If the hirer fails to do so, any costs incurred in connection with the recovery of the equipment by Focquet SA will be charged to the hirer, including lawyers’ fees.
Any option to purchase the hired equipment requested by the customer must be expressly stipulated in the specific conditions.
Focquet SA undertakes to remedy any operating defect within the following limits:
- The warranty is inapplicable if the supplies do not meet the objectives which the customer had in mind and about which the vendor was inadequately informed.
- The warranty is provided for working 8 hours per day.
- Focquet SA is not liable in the event of a defect due either to the materials supplied by the customer or to a design imposed or produced by the customer.
- Any warranty is also ruled out for incidents due to acts of providence or force majeure, normal wear and tear, negligence, a lack of supervision or maintenance or non-conforming use or installation of the equipment by the customer or a third party. The warranty period is limited to twelve months starting from delivery. Repair, modification or replacement of the parts during the warranty period cannot have the effect of extending the initial warranty period. To be able to claim under the warranty, the customer must inform Focquet SA in writing within one week of discovering the defect and in the event of a visible defect or lack of conformity, within three days following delivery. Except with the written consent of the vendor, the customer must refrain from carrying out repairs himself or having them carried out by a third party. The customer forfeits his right to claim a defect or lack of conformity if he does not summons Focquet SA within six months from the date when it complains about the defect or lack of conformity to Focquet SA. Work carried out under warranty is carried out in the workshops of Focquet SA after the customer has returned the defective equipment. Nevertheless, in cases where, in view of the nature of the equipment, Focquet SA consider that repairs should be carried out on-site, Focquet SA will pay for the labor charges corresponding to that repair, excluding times spent on preliminary work or dismantling and re-assembly operations made necessary by the conditions in which this equipment is used or installed. The cost of transporting the defective equipment or defective parts, and that of returning the equipment or parts are payable exclusively by the customer, as are, in the event of repairs on-site, the travel and subsistence expenses of the employees of Focquet SA.
- The liability of Focquet SA is strictly limited to the above-mentioned obligations, and it is clearly defined that Focquet SA will not be bound to pay any compensation whatever in the event of a visible defect, or one that arises after delivery.
- In the event of a latent defect prior to the sale, any additional compensation that may be claimed by the customer will have to be duly justified and may not, in any case, exceed the VAT-exclusive selling price of the equipment delivered.
The machines hired out by Focquet SA are in a good state of repair in every way, unless expressly stated otherwise in the specific conditions. The customer will be charged for any accident or deterioration which may occur. Hire is deemed to be for eight hours’ work per day. The machines must be used with due care and attention, correctly stored, operated by competent workers, cleaned and maintained at regular intervals. The hired equipment must be insured by the customer against all risks of theft or deterioration in whatever form (fire, water damage, vandalism, etc.).
9. Applicable law – Competent court – Language:
In the event of a dispute, the courts of Brussels shall have sole jurisdiction.
The contract is governed by Belgian law, both with regard to its interpretation and its performance. The French-language version of the general terms and conditions shall be authoritative in the case of interpretation of the general terms and conditions.