The present terms and conditions shall apply to all offers and quotations made by bvba beMatrix®, having its registered office at 8800 Roeselare, Wijnendalestraat 174, registered in the Crossroads Bank for Enterprises under number 0872.770.168 (hereinafter referred to as "beMatrix®"), and to any contract concluded between beMatrix® and the customer (hereinafter referred to as the "Customer"), including lease agreements, and to all invoices of beMatrix®, unless different terms and conditions are expressly agreed in writing by the parties concerned, regardless of whether the place of residence or registered office of the Customer is in Belgium or abroad, and regardless of whether the contract is to be performed in Belgium or abroad. These terms and conditions shall have absolute priority over the terms and conditions of the Customer, even if the latter stipulates otherwise.
The Customer shall be deemed to have accepted these general terms and conditions through the mere fact of placing his order.
The mere fact that beMatrix® has not enforced one or more provisions of these general terms and conditions shall not be construed as a waiver of these general terms and conditions.
1. The prices quoted are without obligation and shall only be binding on beMatrix® after written confirmation of the order by beMatrix®. Unless otherwise agreed in writing, the prices shall be exclusive of VAT, transport, storage, packaging and insurance costs, and any taxes or duties shall be borne exclusively by the Customer.
beMatrix® expressly reserves the right, subject to simple notification, to increase its prices in case of increases in certain costs that affect the agreed price, such as an increase in the prices of basic commodities or raw materials, material, wage, freight or other third-party costs, increase in duties and excise duties on the goods to be delivered, changes in currency exchange rates, etc., even if this occurs as a result of foreseeable circumstances.
Invoices shall be payable in cash at the registered office of beMatrix® in the specified currency, net and without discount, unless otherwise stated in the invoice. The Customer shall bear all the costs of payment. The Customer shall bear all collection and protest costs, whether of accepted or non-accepted bills of exchange, or of bank and discount costs.
2. In the absence of protest by registered letter within 5 days of the invoice date, each invoice shall be deemed to have been accepted. The protesting of the invoice shall however not suspend the Customer's payment obligations.
If an invoice remains wholly or partially unpaid on the due date, the Customer shall automatically and without the need to issue a prior notice of default, be liable to pay conventional late payment interest equal to 1% per month for each month already commenced. In addition, in the event of total or partial non-payment of the debt on the due date except on valid grounds, a lump-sum compensation over and above the outstanding balance of the debt amounting to 12% of the invoiced amount shall be payable, subject to a minimum of €125 and a maximum of €2,000, after notice of default that remains unsuccessful even after granting an extension time for payment, and without prejudice to the right of beMatrix® to demand reasonable compensation from the Customer for all relevant collection costs incurred as a result of non-payment, and furthermore, without prejudice to the right to compensation for legal costs. In case of non-payment of one invoice, (i) all other unpaid invoices shall become immediately due and payable in full, by operation of law and without the need to issue a prior notice of default, irrespective of whether or not these invoices have become due for payment, and (ii) beMatrix® shall further have the right, without the need to issue a prior notice of default and without being liable for compensation, to suspend delivery against the Customer's other orders until full payment of the invoice.
beMatrix® reserves the right to suspend all or part of the order and to demand suitable guarantees from the Customer, in case the confidence on the part of beMatrix® concerning the Customer's creditworthiness suffers due to judicial decisions and/or other demonstrable events that call into question, and/or make it impossible to have confidence in the Customer's capacity to properly fulfil the commitments undertaken by it, even if the whole or part of the goods have already been shipped. If the Customer refuses to comply with the same, beMatrix® reserves the right, without the Customer having any right to claim any compensation whatsoever, to annul the whole or part of the order without judicial intervention, without prejudice to the right of beMatrix® to demand compensation for the damage it has suffered. This damage is estimated at a fixed amount of 65% of the sales price to be invoiced for the goods in question.
Each payment shall be deemed to be a payment of interest and/or costs if any payable, and after that, as a payment of the oldest outstanding invoice, regardless of whether or not expressly stated otherwise at the time of making such payment.
Set-off by the Customer is expressly excluded.
3. Unless otherwise agreed in writing, delivery shall be EX-Works (Incoterms ® 2010) and at the risk of the Customer. Under no circumstances shall beMatrix® be held liable for any complaints concerning the shipment, and the Customer shall approach the carrier with such complaint.
Goods may only be returned with the prior written consent of beMatrix®.
Delivery or completion deadline shall always be purely indicative and any exceedance thereof may never give ground to any liability on the part of beMatrix®, or to dissolution of the agreement, or to the right to claim any other compensation whatsoever.
beMatrix® reserves the right to deliver the order in parts, in which case beMatrix® shall be entitled to invoice each part separately.
The Customer shall ensure that beMatrix® or its appointees are able to access the Customer’s business premises or such other place at which the goods are to be delivered, along with such goods, and that the access roads are suitable for the necessary transportation. If the goods cannot be delivered on the scheduled delivery date due to negligence on the part of the Customer, beMatrix® shall have the right to recover all damages and costs incurred by it from the Customer.
In case of cancellation of the order before delivery, a lump-sum compensation amounting to 65% of the sales price of the goods to be invoiced shall be payable by the Customer, without prejudice to the right of beMatrix® to claim a higher compensation if the actual damage suffered is higher.
4. Following delivery and/or assembly, the Customer shall check for visible damage or defects in the delivered goods. Wherever applicable, the Customer shall send beMatrix® a statement accurately specifying the visible damage and defects by registered letter within 48 hours of delivery and/or assembly. Complaints relating to hidden defects must be reported by registered letter to beMatrix® with a detailed description of the defect, within 2 working days after discovery and in any case within 10 working days after delivery. Late complaints shall be inadmissible. In the absence of a timely protest in accordance with this clause, the Customer shall be deemed to have irrevocably accepted and approved the delivered goods.
A complaint about visible or hidden defects shall not suspend the payment obligations of the Customer.
In case the complaint is admissible and well-founded, beMatrix® shall, at its discretion, either repair or replace the delivered goods, without beMatrix® being bound to pay any other compensation and without being liable to any other penalty.
5. Unless otherwise agreed in writing, the warranty on LEDskin goods shall be 1 year from the date of invoice, without this exceeding the warranty given by the manufacturer or supplier. The Customer expressly accepts that the failure of a limited number of pixels per m² is generally accepted as product-specific and therefore cannot give rise to warranty claims. The warranty shall also not apply if (i) the operating and maintenance instructions are not complied with (including installation instructions), (ii) there is incorrect or irresponsible use or incorrect connection or use in combination with incompatible accessories, (iii) the damage or defect is due to any reason unrelated to the production or development of the LEDskin goods (including negligence), (iv) repairs or modifications to the delivered goods have been carried out by the Customer or by third parties, (v) normal wear and tear has occurred. If the warranty applies, beMatrix® shall within a reasonable time, at its option, either repair the defects in the LEDskin goods, or replace the LEDskin goods, without being liable for any other damages. The application of the warranty shall not imply any liability on the part of beMatrix® for (in)direct damage related to the goods covered under the warranty.
6. The goods sold by beMatrix® to the Customer shall remain the property of beMatrix® until full payment of all amounts payable by the Customer, including interest and costs. The right of retention of title shall also extend to all claims that replace the goods that are subject to retention of title.
Nevertheless, the Customer shall fully bear the risks of force majeure, loss or destruction of the goods, and storage costs from the moment the goods are delivered or the Customer fails to take delivery of the goods. The Customer has a duty of care relating to the goods delivered subject to the right of retention of title, and is bound to store and preserve them in perfect condition and in a suitable place, in accordance with the usual sectoral standards and safety requirements applicable within the industry. Until the moment of full payment of the goods, the Customer is expressly prohibited to use the delivered goods as a means of payment or to encumber them with any security right. In case the Customer fails to make full payment by the due date, it shall be bound to return the goods on beMatrix®'s first request.
7. beMatrix® shall only be liable for damage caused by non-compliance with its contractual obligations, if and insofar as such damage is caused by its fraud, deception or wilful misconduct. The maximum liability of beMatrix® shall always be limited to that part of the invoice value of the Customer's order, to which the liability relates. If the damage is covered by insurance, beMatrix®'s liability shall be limited to the amount actually paid to it by its insurer. beMatrix® shall never be liable for indirect damage, including, but not limited to, consequential damage, loss of profit, lost savings, production limitations, administrative or personnel costs, an increase in general costs, loss of customers, claims from third parties or damage to third parties.
The Customer expressly accepts that beMatrix® shall not be liable for the structural stability of the final construction, and that the Customer shall have no right to demand the termination of the agreement, or to refuse delivery and/or payment and/or to obtain any compensation or indemnity on that ground. The Customer shall exclusively bear all the costs of additional reinforcement or rigging. This shall also apply if beMatrix® assists the Customer in the installation of the delivered goods. The Customer shall also be exclusively liable for all damage to the goods of third parties and for all damage resulting from theft, loss or damage to, or by tools or other materials of beMatrix® used to provide such assistance. The Customer shall be solely liable for the use he makes of the goods. The Customer undertakes not to use beMatrix® goods for permanent and load-bearing structures covered under the EN1090 standard.
When using the beMatrix® online tool, the Customer acknowledges that the result depends on external factors such as the intended purpose of the application, and the provision of correct information by the Customer. The Customer expressly accepts that he shall be solely liable to provide essential information to beMatrix® and for the accuracy of the information provided. The goods offered via the online tool are purely indicative. beMatrix® shall not be liable for any lack of compatibility between the goods offered by the online tool. beMatrix® shall also not be liable in case the delivered goods are not suitable for the specific needs and requirements of the Customer.
The liability of beMatrix® cannot be invoked in case of total or partial non-compliance, temporary or otherwise, with its commitments on the grounds of force majeure, even if such force majeure conditions could have been foreseen at the time of concluding the contract, such as war, extreme weather conditions, riots, general or partial strike, general or partial lockout, infectious diseases, operating accidents, fire, breakdown of machinery, bankruptcy of suppliers, lack of raw materials, exhaustion of stocks, delays in delivery or failure to deliver by its suppliers, flooding, high absenteeism due to illness, electronic, IT, Internet or telecommunication interruptions, decisions or interventions by the authorities (including refusal or cancellation of a permit or licence), fuel shortages, etc. Force majeure shall never confer on the Customer the right to terminate the agreement or to claim compensation. Since the Customer's obligation towards beMatrix® is essentially a payment obligation, force majeure on the part of the Customer is hereby expressly excluded.
Any claim by the Customer for damages against beMatrix® shall lapse automatically unless placed before the competent court within a period of 2 years from the date on which the Customer became aware or should reasonably have become aware, of the facts on which the claim is based.
8. Intellectual property rights
beMatrix® reserves at all times all industrial and intellectual property rights relating to the delivered goods and/or services, and the sale of such goods and/or services may never result in a transfer of any industrial or intellectual property right. The Customer undertakes not to remove or render invisible the trademarks of beMatrix® and/or other signs placed on the delivered goods, that in any way refer to beMatrix® and/or its goods and/or services. The Customer undertakes not to in any way infringe the industrial and intellectual property rights of beMatrix® and to notify beMatrix® immediately in writing of any infringements by third parties. If a third party claims that the goods and/or services constitute an infringement of its rights, the Customer undertakes to inform beMatrix® of the same immediately and in writing, under penalty of forfeiture of all possible recourse against beMatrix®.
9. All agreements between beMatrix® and the Customer shall form part of one comprehensive contractual relationship. If the Customer fails to fulfil his obligations under a particular agreement, beMatrix® may suspend the further implementation of both the concerned agreement as well as any other agreements currently in force.
beMatrix® shall have the right to terminate the agreement with the Customer at any time, with immediate effect, by operation of law, without prior notice of default and without payment of any damage compensation whatsoever, in the following cases: (i) the Customer fails to fulfil one or more obligations arising from the agreement (within the required time); (ii) in case of suspension of payment or (filing of an application for declaration of) bankruptcy, or any reorganisation by the Customer; (iii) in case of liquidation or cessation of the Customer's activities; (iv) in case of attachment of (a part of) the Customer's assets. In case of dissolution, all claims of beMatrix® against the Customer shall become immediately due and payable, and the Customer shall owe beMatrix® a lump-sum compensation amounting to 10% of the value of the ordered goods, without prejudice to beMatrix®'s right to claim a higher compensation if the actual damage suffered is higher.
11. All agreements concluded by beMatrix® to which these general terms and conditions apply, shall be exclusively governed by the laws of Belgium, to the exclusion of the Convention of 11 April 1980 on the Law of the International purchase/sale of tangible movable goods. This provision shall apply in all cases, irrespective of the capacity of the parties, the place at which the agreement was concluded or where the agreement is to be performed, insofar as the provision relating to the applicable law is permitted.
All disputes between the Customer and beMatrix® shall be subject to the exclusive jurisdiction of the competent courts of the place in which the registered office of beMatrix® is located, unless beMatrix® prefers to bring the claim before the court that has jurisdiction under the Judicial Code.
12. The possible invalidity or unenforceability of one or more (parts of) the provisions of these terms and conditions shall not affect the validity or enforceability of the other provisions.
In case of a dispute concerning the interpretation of these terms and conditions, the Dutch text shall always prevail.
These lease conditions shall, in particular and in addition to the general conditions mentioned above, apply to all lease agreements concluded by beMatrix® with the Customer (hereinafter referred to as the "Lessee").
1. LEASE PERIOD
The lease shall have a maximum term of 3 weeks from the date of collection/dispatch.
beMatrix® has the right to terminate the lease agreement at any time, by operation of law, with immediate effect and without the need to observe a termination notice period, if the Lessee fails to fulfil his obligations under the lease agreement, without beMatrix® being liable for any compensation. In such case, the Lessee shall immediately be bound to pay beMatrix® the overdue and unpaid instalments, together with a lump sum compensation equal to 65% of the outstanding rental price for the remaining term of the lease agreement, without prejudice to beMatrix®'s right to demand a higher compensation provided that the actual damage suffered is higher. beMatrix® shall also have the right to take back the leased goods immediately, at the expense of the Lessee.
2. OWNERSHIP, USE AND INTENDED USE OF THE LEASED GOOD
The goods shall remain the property of beMatrix® at all times. The Lessee undertakes not to sell, process, pledge or dispose of the leased goods. The Lessee is not permitted to rent out the leased goods to third parties or to give them on loan, whether in return for payment or otherwise.
The Lessee undertakes to take all measures and make notifications at his own expense in order to make beMatrix®'s ownership of the leased goods enforceable as against third parties.
The Lessee undertakes to inform beMatrix® immediately in the event of seizure, loss, theft or other circumstances that could jeopardise beMatrix®'s rights to the leased goods, such as, but not limited to, the filing of a bankruptcy petition or petition for judicial reorganisation by the Lessee. All damage, costs or the loss of the leased goods as a result of seizure, loss, theft or other circumstances that could jeopardise beMatrix®'s rights to the leased goods, shall be borne by the Lessee, without prejudice to the lease rent due.
In the event of theft, the Lessee is obliged to report the theft to the police within 24 hours and to immediately provide beMatrix® with a copy of the official report.
The Lessee is responsible for the possession and all use of the leased goods. The Lessee undertakes to use the leased goods only for the purposes of conducting his business activities for the purposes intended for the same by the manufacturer, in accordance with the technical specifications and operating instructions, and to use the leased goods at his own expense and risk with due diligence and in accordance with the rules of the trade.
The Lessee undertakes to take the necessary safety measures in connection with the risks associated with the use of the leased goods which, upon commissioning, shall be deemed to have been accepted by the Lessee.
The Lessee undertakes to insure himself sufficiently (and at least for the replacement value of the leased goods) with a recognised insurance company against fire, water damage and theft for the entire term of the lease agreement, and to present a copy of the insurance policy and of the last premium payment receipt at the first request of beMatrix®.
The Lessee undertakes not to make any changes to the leased goods that could alter their nature or operation, except with the prior written consent of beMatrix®.
The Lessee shall be bound to inform beMatrix® of the address and the location of the leased goods. The Lessee may only move the leased goods after prior notification to, and after obtaining the consent of beMatrix® in accordance with the provisions of Clause 4.
The Lessee shall be responsible for payment of all costs, charges, levies, taxes or penalties relating to the use of the leased goods during the term of the lease agreement, and undertakes to indemnify beMatrix® against claims from third parties in this respect.
3. RENTAL PRICE
The rental price is a gross price [price before discount] and is calculated with discount as further described in the lease agreement.
Without prejudice to the provisions of the general terms and conditions, the rental price is also exclusive of the costs of preparing and packing the order, the working hours for which shall be paid for by the Lessee and shall be invoiced separately at a rate of €45 per hour.
Early return or termination shall not entitle the Lessee to a refund or reduction of the rental price.
4. PROVISION OF THE LEASED GOODS
The leased goods shall be made available to the Lessee ex-works, either by handing over the leased goods directly to the Lessee, or by handing over the leased goods to a carrier at the expense of the Lessee.
Late availability of the leased goods for reasons beyond the control of beMatrix®’ shall not entitle the Lessee to dissolve the lease agreement, nor to claim any compensation from beMatrix®.
The leased goods shall always be transported on pallets or in boxes owned by beMatrix®, which must be reused upon return. The Lessee shall bear all the damage and costs resulting from missing or damaged packaging material.
5. OBLIGATION TO RETURN THE GOODS
Unless otherwise agreed in writing, the Lessee undertakes to return the leased goods at the end of the lease agreement, regardless of the reason and regardless of who took the initiative, at his own expense and in the condition in which he received them, and using the pallets or boxes referred to in Clause 4, to the registered office of beMatrix®.
On returning the leased goods, the Lessee shall be bound to have the leased goods signed off as returned, failing which the Lessee shall bear the burden of proving that the leased goods were returned in the condition in which he received them.
beMatrix® always reserves the right to carry out a goods inward inspection within a maximum of 4 days after the return delivery, in order to check the leased goods for damage and/or for missing goods or parts. The Lessee may be present at the goods inward inspection, provided that he explicitly requests this in writing at the latest at the time of returning the leased goods, failing which the Lessee shall be deemed to waive this right, and shall be deemed to have accepted the findings of the goods inward inspection by beMatrix®. The parties agree that the goods inward inspection shall constitute conclusive proof of the established damage and/or missing goods, without prejudice to the factual presumption referred to in the previous subclause.
Since only the externally visible condition of the goods can be assessed at the goods inward inspection after return, beMatrix® reserves the right to claim compensation from the Lessee for any damage that is not immediately visible.
In the absence of timely return of the leased goods or a part thereof after the termination of the lease agreement, the Lessee shall be liable to pay beMatrix® a lump-sum compensation for each day's delay, in addition to the normal rental price, equal to 7% of the total gross rental price, for the entire term of the lease agreement, without prejudice to beMatrix®'s right to claim a higher compensation if the actual damage suffered is higher. In such case, the Lessee shall be guilty of misappropriation and abuse of trust, in respect of which beMatrix® shall not fail to file a complaint with the competent judicial authorities.
6. DAMAGE TO THE LEASED GOOD
The Lessee undertakes to inform beMatrix® immediately in writing of any damage or technical defect to or by the leased goods that arises or occurs during the term of the lease agreement.
beMatrix® shall have the right to inspect the leased goods with the Lessee at any time.
The Lessee is not permitted to carry out maintenance and repair work on the leased goods himself. If the Lessee discovers that repair work is required, the Lessee undertakes to immediately notify beMatrix® in writing. If the leased goods require urgent repairs or maintenance during the lease period, the Lessee shall permit this, without this giving rise to any right to compensation or the right to dissolve the lease agreement. The Lessee also undertakes to allow beMatrix® or an employee appointed by beMatrix® to carry out repair work required due to normal wear and tear.
If the Lessee returns the leased goods in a damaged and/or contaminated condition on termination of the lease agreement, the Lessee shall be liable to pay beMatrix® a lump-sum compensation estimated at half of the total gross rental price for the entire term of the lease agreement, in addition to the repair or cleaning costs (including labour and parts), and without prejudice to beMatrix®'s right to claim a higher compensation if the actual damage suffered is higher.
If damage and/or contamination to the leased goods is found during the lease period or upon their return, the Lessee shall be liable to pay a lump sum compensation of €500 for the repair and/or cleaning, without prejudice to the provisions of the previous paragraph and without prejudice to beMatrix®'s right to claim a higher compensation if the actual costs are higher. In case of higher actual costs, beMatrix® shall notify the Lessee of the amount of these costs in writing by registered letter. In the absence of protest from the Lessee by registered letter within a period of 3 working days from the date of the aforesaid registered letter from beMatrix®, the Lessee shall be deemed to have agreed with the estimate of the costs, and the Lessee shall be liable to pay this amount to beMatrix®, without prejudice to the provisions of the previous subclause.
Some non-exhaustive examples of damage:
- Drill, nail and screw holes;
- Separation or breaking off of corners or edges;
- Paint or lacquer damage with adhesive residues from tape, velcro tape, etc.;
- Oily or dirty stains from use in e.g. kitchen on stand;
- Twisted, shortened or scratched parts;
- All kinds of damage due to improper or incorrect use or negligence or carelessness of the Lessee.
In case of loss or theft of (part of) the leased goods or such serious destruction or damage, that repair of the leased goods is not reasonable, the lease agreement shall be legally dissolved without notice. The Lessee accepts that beMatrix® shall have the right to determine when this is the case. In such case, the Lessee shall be liable to pay beMatrix® compensation equal to the current replacement value of the leased goods, without prejudice to beMatrix®'s right to claim a higher compensation if the actual damage suffered is higher. In such case, the leased goods shall be placed at the free disposal of the Lessee, who undertakes to store, clean up, dismantle, transport, etc. the leased goods or the remnants of the same at his own expense.
7. LIABILITY OF THE LESSEE
During the lease of the goods, the Lessee shall be liable for all possible damage or nuisance, including vandalism and force majeure, wrongfully or otherwise, it may have been caused to, or by, or with the leased goods.
The Lessee undertakes to indemnify beMatrix® against all possible claims of third parties for compensation of damage caused by, or with the leased goods during the lease agreement.
8. PROHIBITION ON SUBLETTING
The Lessee is prohibited to sublet or lend out the leased goods or to hand the same over or make them available to third parties under any other condition, without the prior written consent of beMatrix®.