ACD® General terms and conditions

1) GENERAL
1.1 Unless otherwise agreed upon in writing, these general terms and conditions of sale apply to all offers and price quotes drawn up by nv ALU CONSTRUCTION DEVELTERE (Zwaaikomstraat 22, 8800 Roeselare, 0432.637.222 – hereafter referred to as “ACD®”), to any agreement concluded between ACD® and its customer (“Customer”), and to all ACD® invoices, regardless of whether the Customer’s place of residence, or office, is located in Belgium or abroad, and whether the delivery is to be made in Belgium or abroad. In the event of a conflict between these general terms and conditions of sale and any separate written agreement concluded between ACD® and the Customer, the provisions of the separate written agreement will prevail. By the mere fact of the order itself, the Customer accepts these general terms and conditions of sale. With regards to Customer companies, the acceptance of these general terms and conditions of sale also implies that the Customer completely waives the application of its own general (purchase) terms and conditions. The general (purchase) terms and conditions of the Customer will only be valid if they were explicitly accepted by ACD® in writing.
The non-application by ACD® of one or more provisions of these general terms and conditions of sale will in no way be regarded as a waiver of these general terms and conditions of sale.
1.2 Price quotations are valid for 60 days from the date on which they were drawn up, unless explicitly stated otherwise. A deviation from the price quotation is possible if certain factual information that were communicated by the Customer and that were important in determining the price do not appear to correspond to reality.
1.3 In the event of a cancellation of the order by the Customer, the Customer will owe a fixed-rate damage compensation of an amount equal to 25% of the agreed upon price, subject to the right of ACD® to claim higher compensation, subject to proof of higher damages actually suffered.
1.4 The order will be invoiced at the prices and terms and conditions as stated in the order confirmation. Unless otherwise agreed upon in writing, all eventual levies or taxes will be exclusively for the account of the Customer.
1.5 In the event of repairs, adjustments and renewals of components of certain delivered goods, ACD® cannot guarantee the unforeseeable costs that these works would entail. In the case of work on a cost-plus basis, the hours that have actually been performed by the ACD® installers, and that are noted on the work order signed by the Client, will be charged to the Client. Additional work or additional material used on the day of placement must be noted on the work order and signed by the Customer for approval.
1.6 All invoices are payable at the registered office of ACD® within the period specified on the invoice. Each invoice will be deemed as being accepted if no objection is received by registered letter within 8 working days after receipt. Payment must be made in EURO, unless otherwise agreed upon in writing. The invoice must be paid in the net amount. ACD® representatives are not authorized to receive any money. Discounts for immediate payment can only be settled if this has been agreed upon between the parties in advance and in writing. All costs relating to the payment will be borne by the Customer.
1.7 In the event of total or partial non-payment of an invoice on the due date, the Customer will owe, by law and without prior notice of default, an interest of 1% per month for each month that has already commenced. In addition, in the event of total or partial non-payment of a debt on the due date without any valid reason, after a default notice, the debt balance will be increased with a fixed-rate compensation of 10% of the invoiced amount, with a minimum of 125 EURO and a maximum of 2.500 EURO, even with the granting of periods of respite and without prejudice to ACD®’s right to claim higher compensation, subject to proof of higher actual damages suffered. In the case of non-payment of one single invoice on the due date, (i) ACD® will be entitled to suspend all other orders of the Customer and obligations with respect to the Customer, without prior notification or without owing compensation for damages, until full payment of the invoice by the Customer and (ii) all outstanding claims on the Customer will be due immediately and without notification. The withdrawal and/or acceptance of a bill of exchange or other negotiable documents, payment by bank transfer or in any other way, will not result in debt renewal and will not constitute a deviation from the terms of sale. If ACD®’s confidence in the Customer’s creditworthiness is upset by judicial settlements and/or identifiable other events that will question and/or render the proper execution of Customer’s commitments impossible, ACD® will have the right to suspend all or part of the order, even if the goods have already been partially or wholly delivered, and to demand appropriate guarantees from the Customer. If the Customer refuses to react in this regard, ACD® will reserve the right to cancel the entire order or part thereof without the Customer being entitled to any compensation and without prejudice to ACD®’s right to compensation for its damages suffered.
Each payment will be deemed to be a payment of eventual interest and/or costs due and consequently a payment of the oldest outstanding invoice, regardless whether or not it is explicitly stated otherwise with the payment.

1.8 The agreed delivery times are indicative, unless otherwise agreed upon in writing. Amendments to an order placed – if accepted by ACD® – automatically mean that the proposed delivery period has been extended. The goods supplied by ACD® to the Customer will remain the property of ACD® until all amounts owed by the Customer to ACD®, including interests and costs have been paid. Nevertheless, the risk of loss or destruction of the goods will be fully borne by the Customer from the moment that the sold goods have been delivered. The Customer has a duty of care with regards to the goods subject to proprietary preservation and should store in perfect condition in a suitable and clean place. Until the time of full payment, the Customer is expressly forbidden to dispose of the goods delivered as a means of payment or to encumber them with any security interest. If this should nevertheless be the case, the Customer must unconditionally and irrevocably transfer all claims that he may have against third parties as a result of the sale of the goods and property of ACD® to ACD®, who will accept this. ACD® will make the conditions for delivery and tips for possible self-placement available to the Customer in writing, at the latest at the conclusion of the agreement.
1.9The Customer must verify whether the goods delivered display any visible damage or defects at the time of delivery or assembly. Visible damage or defects must be specifically and accurately reported by the Customer by registered letter, e-mail or fax to ACD® and that at the latest within 72 hours after delivery or assembly and before the use thereof. Complaints filed after this period will not be accepted.
1.10 ACD® must makes all information available to the Customer in writing with regards to the guarantee regulation for the new goods delivered and/or placed by ACD® and that at the latest when the agreement between ACD® and the Customer is established. The Client will receive a 2-year guarantee, starting from the date of delivery (excluding the provisions below)
• ACD® Prestige greenhouses: 12-year manufacturer guarantee + 2 years on colour coating
• ACD® Greenhouses: 10-year manufacturer guarantee + 2 years colour coating
This guarantee includes all components, working hours and travelling of ACD®. In the event of repairs after this period, the costs for working hours and travelling must be paid by the Customer. The entitlement to this guarantee only applies after full payment of the invoice by the Customer. The goods delivered and/or placed by ACD® will receive the manufacturer’s guarantee from the manufacturer of the goods, as communicated by ACD® to the Customer, at the latest at the conclusion of the agreement between ACD® and the Customer. Consequential damages as a result (damage to other materials or to third parties) are not included in this guarantee. The ACD® guarantee does not apply if it is determined during the repair by ACD® that (i) the user and maintenance instructions were not complied with, (ii) there was improper or irresponsible use, incorrect connection by third parties or incorrect maintenance (not in accordance with the manufacturer’s instructions), (iii) repairs or modifications to the goods have been carried out by third parties and (iv) there has been damage by third parties/vandalism or (v) damage due to exposure to an aggressive environment (corrosion, discolouration,…).

1.11 ACD® must makes all information available to the Customer in writing with regards to the guarantee regulation for the new goods delivered and/or placed by ACD® and that at the latest when the agreement between ACD® and the Customer is established.
1.12 Placements are never executed when the weather is a risk to the ACD® installers.
1.13 Insofar as ACD® depends on the cooperation, services and deliveries of third parties in the performance of its obligations, ACD® cannot be held liable for any damage resulting from their error, including their fraud, deception, grave and/or deliberate errors.
The Client explicitly accepts that ACD® will not be liable and that the Client will not have the right to demand the dissolution of the agreement, to refuse delivery and/or payment and to obtain any form of damage compensation or reimbursement in the event of (i) slight differences in the colour, or slight differences in the dimensions of the goods, insofar as they cannot be prevented from a technical point of view, or are generally accepted, or are specific to the materials used, (ii) inaccuracies in measurements made by the Customer, (iii) inaccuracies in the assigned work of the Customer, (iv) inaccuracies in the constructions and working methods desired by the Customer, (v) defects in the movable or immovable property to which the assembly is executed, (vi) defects in materials or auxiliary devices made available by the Client and (vii) inaccuracies in the information provided by or on behalf of the Client. The Client must ensure that all permits that are required are obtained in time. The risk of not obtaining these permits will be borne by the Customer. The Client must ensure that ACD® can execute its work undisturbed and at the agreed time and that ACD® will be provided with the necessary facilities, such as water, electricity and a lockable dry storage space. The Customer will be liable for all damages resulting from loss, theft, burning or damage to tools, materials and other items from ACD® that are located at the place where the work is being executed.

1.14 ACD®’s liability cannot be invoked when, in whole or in part, non-compliance with its obligations is due to force majeure, even if this circumstance was already to be foreseen at the time of the agreement’s conclusion, such as war, extreme weather conditions, riots, general or partial strikes, general or partial lock-out, infectious diseases, operating accidents, fire, machine failure, bankruptcy of suppliers, lack of raw materials, exhaustion of inventory, delays in or non-occurrence of deliveries by ACD®’s suppliers, floods, extreme absenteeism due to illness, electronic-, information technology-, internet- or telecommunications disruptions, decisions or interventions by the government (including the refusal or cancellation of a permit or license), fuel shortages, etc. ACD® will not be obliged to prove the unaccountable and unforeseeable nature of the circumstances that constitute force majeure.
1.15 All agreements between ACD® and the Customer form part of one global contractual relationship. If the Customer fails to fulfil his obligations under a particular agreement, ACD® can suspend the further execution of both the relevant and other current agreements.
1.16 Without prejudice to any other written agreement, all intellectual property rights with regards to drawings, designs, calculations, etc., performed by ACD® for the account of the Customer and handed over to the Customer, will remain the property of ACD® and will under no circumstances be transferred to the Customer.
1.17 If a (part of a) provision of these general terms and conditions of sale would be invalid or unenforceable, it would not affect the validity and enforceability of the other provisions of these general terms and conditions of sale.
1.18 All agreements to which these general terms and conditions of sale apply, as well as all other agreements arising from them, are exclusively governed by Belgian law. All disputes between the Client and ACD® fall under the exclusive jurisdiction of the competent courts in Ghent – Kortrijk division, or the competent courts of the Client’s place of residence, at the discretion of ACD®.

2) WITH REGARDS TO CONSUMERS
2.1 An agreement between ACD® and the Customer is only concluded at the time of written confirmation by ACD® and will remain valid for one month after the written confirmation, unless stated otherwise.
2.2 If a period for the delivery and/or assembly of the ordered goods has been agreed upon, the Customer must notify ACD® in writing if this period has been exceeded. After receiving this notice of default, ACD® must be offered a period of 2 months to still implement the agreement between the Customer and ACD®. In the event that ACD® does not perform the delivery and/or assembly of the ordered goods within the aforementioned period of 2 months, the Customer will have the right to terminate the agreement with the Customer with immediate effect, without judicial authorization, without prior notice of default and to dissolve the agreement without payment of any compensation. In the event of dissolution, ACD® will owe a fixed-rate compensation in the amount of 1% of the value of the goods ordered, without prejudice to the Customer’s right to claim a higher compensation, subject to proof of higher actual damage suffered.
2.3 The Customer is obliged to receive the goods delivered by ACD® at the agreed time. Delivery costs are included in the price for orders as from EUR 375, excluding VAT. If the delivery requires the use of special material, a specialized company will be appealed to. All costs in this regard will be borne by the Customer. The Customer must sign the delivery note upon receipt, stating his name and “for goods received”. If, for whatever reason, the goods were not received by the Customer on the delivery date, the goods in question will be stored by ACD® for a limited period, at the expense and risk of the Customer. This protective measure will not suspend the Customer’s payment obligation. The delivery can be suspended by ACD® for as long as the Customer still has to fulfil an obligation towards ACD®. The following transport costs apply if the free freight amount of 375 EUR, excluding VAT, has not been paid:
• Transport cost for packages in the Benelux -> € 20.00 excluding VAT
• Transport cost for a pallet in the Benelux -> €50.00 excluding VAT

2.4 Each complaint regarding a lack of conformity that exists with the delivery or assembly of the goods and that manifests itself within a period of 2 years from the aforementioned delivery or completion of the works must be made by registered letter and must be sent to ACD® within 2 month at the latest after the defect has been determined. This report must contain a detailed description of the defect. Complaints filed after this period will not be accepted.
In the event of an admissible and well-founded complaint with regards to defects (visible defects or lack of conformity) in the goods, the Customer will have the right to either demand a replacement, or the repair of the delivered goods, or an appropriate reduction in the price, or demand the termination of the agreement. ACD® is at liberty to propose a different compensation to the Customer.

2.5 ACD® (including its employees, representatives and/or designated persons) will only be liable for damage caused by non-compliance with its contractual obligations, if and insofar as that damage is caused by (i) its fraud, deception, deliberate or grave error or (ii) its liability as a result of Article 1792 Civil code and Article 2270 Civil Code (ten-year liability). ACD® will not be liable for other errors. In the event that ACD® is held liable for any damage, then ACD®’s liability will always be limited to a maximum of the invoice value of the Customer’s order, at least to that part of the order that relates to the liability. In case the damage is covered by insurance, the liability of ACD® will always be limited to the amount that is actually paid out by its insurer. ACD® will never be liable for indirect damages, including, but not limited to, consequential loss, loss of profits, loss of savings, production restrictions, administrative or personnel expenses, an increase in the general costs, loss of clientele, third party claims or damage to third parties. The Customer will exclusively be responsible for the use that he makes of the goods.
2.6 ACD® will have the right to dissolve the agreement with the Customer at all times, with immediate effect, without judicial authorization, without prior notification and without owing any damage compensation in the following cases: (i) if the Customer is in default with regards to the (timely) fulfilment of one or more obligations arising from the agreement, despite written notice of default, whereby a period of at least 8 working days is observed or (ii) if attachment is levied on (a part of) the Client’s assets. In the event of dissolution, all claims of ACD® with regards to the Client will become immediately due and the Client will owe ACD® a fixed-rate compensation amounting to 10% of the value of the ordered goods, without prejudice to ACD®’s right to a higher compensation, subject to proof of higher actual damages suffered.
3) WITH REGARDS TO COMPANIES
3.1 ACD®’s offers, quotes and contract proposals are without obligation and do not bind ACD® as such. Orders from the Customer do not bind ACD® either.
3.2 An agreement between ACD® and the Customer is only concluded at the time of written
confirmation by ACD®, or an authorized ACD® representative, and will remain valid for one month after the written confirmation, unless stated otherwise.

3.3 Unless otherwise agreed upon, the prices are exclusive of VAT, shipping, packaging and insurance costs. If, due to circumstances beyond the control of ACD®, certain costs that have an influence on the agreed price increase, even if this occurs as a result of foreseeable circumstances, such as increases in duties and excise duties on the goods that are to be delivered, increases in freight rates, increases in energy, the prices of the basic products or raw materials, increases in wages pursuant to legal provisions or national or sectoral collective agreements, changes in the currency, etc., ACD® will be entitled, subject to simple notification, to charge a proportionate price increase. Any work and services of ACD® that are supplied by ACD®, in addition or change and on behalf of the Customer, will be charged to the Customer, based on the usual rates.
3.4 An objection to the invoice will not suspend the Customer’s payment obligation. All collection and protest costs, either of accepted bills of exchange or of non-accepted bills of exchange, or bank and discount costs, will be borne by the Customer. In the event of total or partial non-payment of an invoice on the due date, ACD®, in addition to the fixed-rate reimbursement from the Customer to ACD® (as stipulated in Article 1.7), will be entitled to reimbursement of legal costs, and will be entitled to reasonable compensation by the Customer for all relevant collection costs caused by the non-payment. Settlement by offsetting by the Customer is explicitly out of the question.
3.5 The eventual exceeding of the delivery period cannot give rise to any liability with regards to ACD®, or to the termination of the agreement, or to any form of damage compensation. Unless otherwise agreed upon in writing, the delivery of the goods takes place EX WORKS (Incoterms® 2010 – registered office ACD®). The Customer is obliged to collect the goods on the specified delivery dates. The Customer must sign the delivery note upon receipt, stating his name and “for goods received”. The Customer can always be represented. If, for whatever reason, the goods were not received by the Customer on the delivery date, the goods in question will be stored by ACD®® for a limited period, at the expense and risk of the Customer. This protective measure will not suspend the Customer’s payment obligation. The delivery can be suspended by ACD® for as long as the Customer still has to fulfil an obligation towards ACD®. If it has been explicitly been agreed upon that ACD® will arrange for the transport of the goods sold, ACD® will determine the method of transport, shipping, packaging and suchlike if no further instructions have been provided by the Customer. In such a case, the risk of storage, loading, transport and unloading will be the responsibility of the Customer and ACD® cannot be held liable for this. The advances paid by the Customer will be retained by us to compensate for the possible losses in the event of resale.
3.6 Any complaint regarding hidden defects must be made by registered letter and must be sent to ACD® at the latest within 4 months after delivery of the goods or completion of the works. This report must contain a detailed description of the defect. Complaints filed after this period will not be accepted. Moreover, complaints about visible and hidden defects will not suspend the payment obligation on the part of the Customer. In the event of an admissible and legitimate complaint regarding defects in the goods, ACD® will replace the delivered goods. ACD® can never be held liable for any other damage compensation, nor can any other sanctions be imposed on it.
3.7 ACD® (including its employees, representatives and/or designated persons) will only be liable for damage caused by non-compliance with its contractual obligations, if and insofar as that damage is caused by (i) its fraud, deception, deliberate or grave error or (ii) its liability as a result of Article 1792 Civil code and Article 2270 Civil Code (ten-year liability). ACD® will not be liable for other errors (including gross errors). In the event that ACD® is held liable for any damage, then ACD®’s liability will always be limited to a maximum of the invoice value of the Customer’s order, at least to that part of the order that relates to the liability. In case the damage is covered by insurance, the liability of ACD® will always be limited to the amount that is actually paid out by its insurer. ACD® will never be liable for indirect damages, including, but not limited to, consequential loss, loss of profits, loss of savings, production restrictions, administrative or personnel expenses, an increase in the general costs, loss of clientele, third party claims or damage to third parties. The Customer will exclusively be responsible for the use that he makes of the goods.
3.8 Force majeure will in no way whatsoever give the Client the right to terminate the agreement or to any compensation. Since the Customer’s commitments to ACD® essentially constitute a payment obligation, force majeure on the part of the Customer is hereby explicitly excluded.
3.9In the event that the implementation of the agreement entails an unreasonable or disproportionate burden for ACD®, the parties will enter into consultation to jointly agree on a similar amendment to the agreement.
3.10 Any claim by the Customer for compensation with regards to ACD® will lapse by operation of the law if it has not been brought before the competent court within a period of 3 years after the facts on which the claim was based were known by the Customer, or could reasonably have been known.
3.11 ACD® will have the right to dissolve the agreement with the Customer at all times, with immediate effect, without judicial authorization, without prior notification and without owing any damage compensation in the following cases: (I) if the Customer fails to comply with the (timely) compliance of one or more of the commitments arising from the agreement; (ii) upon cessation of payment or (the application of) bankruptcy or reorganization under the Law of 31 January 2009 regarding the continuity of the company by the Customer; (iii) upon liquidation or termination of the Customer’s activities; or (iv) seizure of (part of) the Customer’s assets. In the event of dissolution, all claims of ACD® with regards to the Client will become immediately due and the Client will owe ACD® a fixed-rate compensation amounting to 10% of the value of the ordered goods, without prejudice to ACD®’s right to a higher compensation, subject to proof of higher actual damages suffered.