General terms and conditions of sale
1. Definitions
1.1. "ESAFE": eSafe, a private limited liability company (besloten vennootschap met beperkte aansprakelijkheid) with its registered office at Maalbeekstraat 10, 8790 Waregem, Belgium, VAT BE-0652.707.357, RLE Ghent, Kortrijk division;
1.2. "Customer": All natural persons or legal entities who place an order with ESAFE, and all persons who do so in the name or for the account of a legal entity;
1.3. "Products": All products that form part of the ESAFE product range;
1.4. "Website": https://www.my-esafe.be & https://www.albo.be
2. Language
The original language of these general terms and conditions of sale (hereinafter: "T&Cs") is Dutch. Any translations drawn up in a different language serve only for the convenience of the Customer. In case of any contradictions, the Dutch version will at all times prevail.
3. Scope
3.1. All commercial relations between ESAFE and the Customer will be governed by (in descending order of hierarchy): (i) the written agreement between ESAFE and the Customer; (ii) the written order confirmation issued by ESAFE; (iii) the quote accepted in writing by the Customer; (iv) these T&Cs and (v) the laws of Belgium.
3.2. By requesting a price, placing an order or entering into an agreement, the Customer acknowledges to have read these T&Cs and to accept them. These T&Cs will always take precedence over the terms and conditions of the Customer, even if those terms and conditions stipulate that they are exclusively applicable.
3.3. The (repeat) omission of ESAFE to exercise any right may only be regarded as ESAFE tolerating a certain state of affairs, and will never give rise to any rights at a later stage.
3.4. These T&Cs do not affect the mandatory legal rights granted to the Customer as a consumer under the Belgian consumer protection legislation.
3.5. The possible nullity of one or more provisions in these T&Cs or part thereof does not affect the validity and applicability of all other clauses and/or the remainder of the provision in question. The competent court may moderate any invalid provision to what is (legally) permissible.
3.6. ESAFE hereby informs the Customer that the T&Cs that follow are the general terms and conditions of sale of eSafe bvba. Accordingly, specific terms and conditions of sale will be applicable in case of the purchase of an eSafe Wall product (hereinafter: the "eSafe Wall specific T&Cs"), and these eSafe Wall specific T&Cs will prevail over the general terms and conditions of sale in case of any contradictions and/or product-specific terms and conditions. For clarity: in the absence of any contradictions, the eSafe Wall specific T&Cs will supplement the general terms and conditions of sale, which will remain applicable to the eSafe Wall.
4. Promotional communications and quote
4.1. Any brochures, catalogues, newsletters and other promotional communications, as well as any information on the Website and on the social media of ESAFE (Facebook, LinkedIn, Twitter, Instagram, YouTube, Pinterest etc.) are intended to introduce eSafe products to consumers and to market these products, and must never be interpreted as final offers to recipients/potential customers. The products ordered may differ from these publications, depending on the order and requirements of the Customer. ESAFE does not regard any standard prices, descriptions, properties, functionalities and images of the Products as shown on promotional communications as final, binding offers. The final pricing, product description, properties and functionalities will be indicated per individual purchase order or agreement, and are subject to possible errors.
4.2. The validity of any quote is at all times limited to thirty (30) calendar days, unless specified otherwise. Any quote is only valid for one specific order and will not be valid for any future orders. In addition, any quote only includes the Products and services, if applicable, that are explicitly listed.
4.3. A deviation from the quote may also occur if certain factual data provided by the Customer, which were important in setting the price, do not appear to correspond to reality.
5. Conclusion of agreement
5.1. The agreement between ESAFE and the Customer will only be concluded (i) following written/electronic order confirmation by a person authorised to bind ESAFE, or (ii) once ESAFE starts to fulfil the order (whichever comes first).
5.2. The acceptance of one or more orders is dependent on the availability of the Products ordered. ESAFE strives to fulfil all orders placed by its Customers. Even so, ESAFE cannot be held liable if one or more specific orders cannot be fulfilled due to the Products ordered not being available, or not being available in time.
5.3. ESAFE is free to choose who it wishes to enter into an agreement with and at all times has the right to stipulate a minimum order. ESAFE also reserves the right to refuse Customers, including but not limited to when they wish to place an order falling below the minimum order volume, for example.
5.4. ESAFE at all times reserves the right to request additional information concerning the Customer — regarding their activities or creditworthiness, for example — and if the Customer fails to provide such information, to refuse or suspend the order, or to demand partial or full advance payment (cf. Article 8).
5.5. Any changes and/or additions to the order following the conclusion of the agreement are only applicable following written agreement by ESAFE. The Customer acknowledges that such changes and/or additions will have an impact on delivery times and prices (cf. Article 7 and Article 9). An administrative fee will also be charged. In the absence of written agreement regarding any changes or additions to the order, it will be assumed that these are fulfilled in accordance with the (verbal) instructions of the Customer.
6. Cancellation
6.1. Cancelling an order is only possible if production has not yet started, and any cancellation is only valid following written agreement by ESAFE. In the event of cancellation, an administrative fee will be charged to the Customer. In addition, any costs already incurred will be invoiced. In no event can a Customer cancel an order after production has started. The status of the order and whether or not it is possible to apply any changes can only be determined and confirmed by ESAFE itself.
6.2. ESAFE is entitled to cancel an order — without any right to compensation on the part of the Customer — when:
- Such order is based on erroneous information by the Customer or when ESAFE suspects that the Customer is using ESAFE's services for reasons that cannot objectively be regarded as reasonable and acceptable;
- During the fulfilment of the order, due to objective reasons, ESAFE is not or no longer able to fulfil the order. In such case, ESAFE will notify the Customer of this within a reasonable period. Only when no alternative solution is available will ESAFE refund any payment already made to the Customer, within 14 calendar days following the aforementioned notice.
7. Price
7.1. All prices are expressed in euros, exclusive of delivery and transport fees, taxes and levies, unless agreed otherwise in writing between the Parties. Prices are only inclusive of VAT where explicitly stated.
7.2. ESAFE reserves the right to amend the prices as shown on the Website at any time. The price due from the Customer is the price applicable at the time the Customer places the order.
7.3. Insofar as its prices are based on the wage costs, component costs, social security premiums and government levies, transport costs and insurance premiums, (raw) material costs, exchange rates and/or other costs applicable at the time, ESAFE is entitled, in the event of an increase in one or more of these price-determining factors, to increase its prices accordingly and in accordance with the standards permitted by the law.
8. Advance payment
8.1. ESAFE at all times reserves the right to charge an advance to the Customer or to demand full payment in advance from the Customer before proceeding to fulfil the order.
8.2. Any late payment of such advance, or of the full price, if agreed as such, will in all cases lead to the delivery date being suspended. If the Customer refuses to make payment even after a reminder to that effect, ESAFE reserves the right to cancel the entire order, or any part thereof, in which case the Customer will be charged the full value of the order as compensation.
9. Delivery dates
9.1. The agreed delivery dates are indicative, unless otherwise agreed in writing. These dates will be respected as far as possible. Exceeding the delivery date will never give rise to any liability on the part of ESAFE, nor can it serve as grounds for termination of the agreement.
9.2. Any changes to the order, if accepted by ESAFE, will automatically mean that the proposed delivery date will be delayed. If the Customer exceeds the payment term for any advance payments, this will automatically be added to the delivery date.
9.3. ESAFE will in no event accept liability for delays in delivery caused as a consequence of the suppliers of ESAFE, the Customer or any other third party remaining in default.
10. Delivery
10.1. Collection by the Customer: Unless expressly agreed otherwise, the Products will be delivered EX WORKS (Incoterms® 2010) at the ESAFE warehouse (as specified on the order confirmation). The costs of collection and receipt are for the account of the Customer.
10.2. Delivery by ESAFE: At the express request of the Customer, ESAFE will arrange for the transport of the Products. In such case, the Products will be delivered FCA (Incoterms® 2010) to the delivery address specified by the Customer. Unless expressly agreed otherwise, the Customer will be charged for the delivery and shipping costs. The means of transport and who will handle the transport will be decided by ESAFE itself.
10.3. The Customer is responsible for the place of delivery being accessible and opened up for delivery. Any extra unloading time (including waiting time or all other delays due to the fault of the Customer) will be charged to the Customer. If the Customer refuses delivery or fails to provide the information or instructions required for the transport of the Products, ESAFE is entitled to take all necessary measures (such as third-party storage) at the expense and risk of the Customer.
10.4. ESAFE reserves the right to make partial deliveries in relation to any order whatsoever, and to issue an invoice for such partial deliveries.
10.5. The Customer must always sign the consignment note to confirm safe receipt of the goods. If the note is signed without any mention of damage, all liability on the part of ESAFE for transport damage will lapse.
11. Non-conformity, visible and invisible defects
11.1. The Customer must carry out an initial verification upon delivery of the Products, including in relation to the correct location(s), quantity and weight, dimensions, conformity of the delivery, and visible defects (incl. damage to the packaging). Following this verification, the Customer must report any non-conformity and/or any directly verifiable discrepancy/visible defect to ESAFE immediately upon delivery — on penalty of forfeiture of all rights — via the CMR note of the transporter, or if this is not available, in writing and by e-mail (to info@my-esafe.be) within 48 hours of delivery.
11.2. Unless expressly agreed otherwise, ESAFE will only grant indemnity for hidden defects discovered within one month following delivery. On penalty of forfeiture of all rights, the Customer musty notify ESAFE of any hidden defect no later than within 48 hours of its discovery.11.3. All complaints submitted following the expiry of the above-mentioned periods will be deemed inadmissible.
11.4. When reporting any defects, the Customer must at all times describe the defect observed in detail and submit photographs of the defect observed to enable ESAFE to investigate the alleged defect.
11.5. Following observance of any defect, and on penalty of the inadmissibility of any complaint, the Customer is obliged to immediately stop using the Product in question, and to take all necessary measures, either directly or indirectly, to prevent any (further) damage. The Customer must in no case return any Products without prior written agreement from ESAFE. The Customer must make all defective goods available to ESAFE for inspection at the first request of the latter. In addition, the Customer must return such goods to ESAFE at the first request of the latter.
11.6. The Customer expressly accepts that differences in colour may occur between the examples shown in catalogues and the goods delivered, and that minor colour differences may occur between paint shops while hardening components by RAL number. Such deviations do not give the Customer the right to demand the termination of the agreement, refuse delivery and/or payment, and/or receive any kind of compensation or redress.
11.7. ESAFE cannot be held liable for any hidden defect if the Customer has failed to comply with this Article in any way whatsoever.
12. Complaints - Warranty
12.1. The warranty offered by ESAFE to the Customer in case of a valid complaint will remain limited to the following, at the discretion of ESAFE and according to its own insight: (i) (re)delivery of the missing or defective goods, (ii) repair of the defective Products, or (iii) return of the defective Products and a refund of the price of the defective Products. ESAFE can never be obliged to pay any other compensation, nor can any other sanction be imposed on it.
12.2. Any complaints (of any nature whatsoever) will never relieve the Customer of its obligation to pay (cf. Article 14) and give the Customer no authority to refuse delivery of any goods that do not form the subject of the complaint. The Customer is also obliged to reimburse any expenses incurred as a consequence of unfounded complaints.
12.3. The warranty offered by ESAFE is not applicable in the event of damage to any goods through abnormal use, faulty maintenance, normal wear and tear or in the event of deviations that are inherent to the good and that do not affect its functioning. "Abnormal use" will be taken to include all misuse, unsafe use, incorrect or forced use and unauthorised modifications or changes to the good and/or any components thereof. The warranty offered by ESAFE will also not be applicable in the event of damage caused by transport or storage on site, defects caused by repairs carried out by third parties without the necessary expertise, damage caused by any components used that are non-conforming, nor approved by ESAFE's technical department, intensive exposure to harmful atmospheric conditions, installation using insufficiently strong mounting equipment, abnormal weather circumstances (storm, hail, water, lighting and fire damage), violence and acts of war.
12.4. The warranty on powder-coating errors is ten years. The statutory warranty period of two years is applicable to all products. The warranty period will always start as soon as the Product has been received.During the warranty period, in the event of an admissible and justified complaint in relation to defects in the goods, ESAFE guarantees an overhaul of the product, if necessary, the replacement and/or repair (at ESAFE's discretion) of the defective good and/or the delivery of parts to replace any defective parts (always to be installed by the Customer (installer)). ESAFE can never be obliged to pay any compensation, nor can any other sanction be imposed on it. The transport of defective goods to the ESAFE workshops will be at the expense of the Customer. The Customer cannot claim any other (damage) compensation or reimbursement by ESAFE, such as for installation costs (travel expenses and hourly wage), for example.
13. Electronic invoicing
By placing an order, the Customer expressly agrees to the use of electronic invoicing by ESAFE, unless agreed otherwise in writing between the parties.
14. Payment
14.1. ESAFE's invoices are payable in full by the Customer by bank transfer to the bank account number specified by ESAFE within thirty (30) calendar days following the invoice date, and without any discount on the invoice date, unless mentioned otherwise.
14.2. Objections to any invoices may only be raised in writing within eight (8) calendar days following the invoice date, stating the invoice date and number and including a detailed explanation of the objection.
14.3. The unconditional payment of part of an invoice amount will be taken as express acceptance of the corresponding part of the invoice. Any such objection will not relieve the Customer from its payment obligations in any way.
14.4. Any partial payments will always be accepted without prejudice and with full reservation of all rights, and will be allocated first to the collection fees, then to any damages and the accrued interest, and finally to the outstanding principal amount, with the oldest outstanding principal amount being settled first.
15. Consequences of non-payment or late payment
15.1. For every invoice not paid in full or in part by the Customer on the due date, late-payment interest of one percent (1%) per overdue month will be charged by operation of law and without prior notice of default, with each month that has started being considered as a full month. In addition, the amount due will be increased by adding all collection costs incurred by ESAFE in relation to debt collection, plus ten percent (10%) of the invoice amount, with a minimum of one hundred and twenty-five (125) euros, as flat-rate compensation for damages, without prejudice to the right of ESAFE to demand greater compensation.
15.2. If the Customer remains in default regarding the payment of one or more outstanding claims to ESAFE, as well as when the Customer is in a state of bankruptcy or insolvency, ESAFE reserves the right to immediately cease any further delivery and, without serving notice of default, to suspend or consider as terminated all agreements with the Customer at its discretion, in which case the Customer will owe ESAFE the full amount of the accepted order, without prejudice to the right to compensation for higher proven damages.
15.3. Such situation will also lead to all other invoices immediately becoming due, even if these have not yet reached their due date, and will cause all payment terms granted to lapse. The same applies in case of imminent bankruptcy, dissolution of the company, whether in or out of court, cessation of payment, as well as any other event indicating the insolvency of the Customer.
16. Assembly and installation
16.1. Unless when expressly agreed as such in writing by the parties, the assembly and installation of the products will never form part of the agreement between ESAFE and the Customer. The Customer must provide, at its own expense, all assistance and materials required for assembly and installation.
16.2. Where applicable, ESAFE will provide a manual for the installation and use of the Products.
17. Retention of title
17.1. ESAFE retains the title to the Products delivered to the Customer, even when processing has already taken place and the Products have been incorporated, for as long as the Customer has not paid the price, costs, interest and all other ancillary charges relating to the order in full.
17.2. Prior to the moment the title is transferred, the Customer is not authorised to sell the Products, process them, use them, transform them, transfer them, encumber them and/or dispose of them. It is agreed between the parties that the various transactions/contracts between them will be regarded as forming part of a single economic transaction, and that ESAFE will at all times retain the title to any Products in the possession of the customer for as long as the customer has any outstanding debt with ESAFE.
17.3.The risk of loss of or damage to the eSafe products transfers to the customer on delivery.
18. Liability
18.1. With the exception of the indemnity granted by ESAFE in accordance with Article 12, the liability of ESAFE will be limited to the lowest of the following amounts: (i) the invoice value of the Products and (ii) the amount paid out by ESAFE's insurer(s); and in any case to the mandatory liability imposed by the laws of Belgium.
18.2. In addition, ESAFE will in no event be obliged to compensate any indirect or consequential damage (including but not limited to loss of income or damage to third parties, or any consequential damage caused by these Products).
18.3. Notwithstanding the provisions of Article 18.1, the Customer cannot claim any warranty/indemnity from ESAFE for:- Any damage caused directly or indirectly by an act of the Customer or of a third party, regardless of whether such damage is caused by an error or negligence;
- Any damage caused directly or indirectly by an act of the Customer or of a third party, regardless of whether such damage is caused by an error or negligence;
- Any damage caused by the incorrect or incompetent installation of the Products by the Customer itself or by a third party, contrary to the prescriptions and data sheets supplied;
- Any damage caused by abnormal, incompetent or extraordinary use, load and/or wear and tear of the Products or by failure to comply with the advice and instructions for use and maintenance, as provided in the installation and usage manual supplied. ESAFE can in no event be held liable for stains, discolouration or other changes to the products caused by (extraordinary) environmental factors and/or weather circumstances;
- Any natural discolouration and weathering of the Products that is inherent to the materials used in the Products;
- Any damage caused by the theft of and/or damage to the parcels delivered to the Products. In addition, the end customer is obliged to regularly change the access code of the Product;
- Minor changes to the Products, if these are technically necessary or follow any developments in engineering, technology, production and aesthetics. The above applies on the condition that such changes only relate to details and do not affect the specific functional and external features that are essential to the Customer.
- Any additional damage due to the continued use, processing and/or installation of the Products following the observance of a defect, or any additional damage caused by the Customer not doing (or ceasing to do) everything reasonably possible to prevent (further) damage;
- Any damage caused by force majeure and hardship in accordance with the provisions of Article 20.
18.4. The putting to use of the Products by the Customer or by a third party appointed by the Customer is done under the full responsibility and at the risk of the Customer. ESAFE cannot be held liable in any way whatsoever in this case for any direct or indirect damage arising from such putting to use.
18.5. Insofar as applicable, the product liability of ESAFE, as the manufacturer of the Products, will in any case be limited to the following damage caused by any defect in its Product:
- Physical damage caused to persons (caused by any person whatsoever who uses the Product);
- Any damage caused to goods, subject to an excess of 500 euros and insofar as these are intended for and mainly used by the victim in a private setting, except for any damage caused to the defective Product itself.
Notwithstanding the above, ESAFE cannot be held liable when:
- The damage is caused due to a culpable act of the victim or a person for whom the victim is responsible;
- The damage is caused by a defect that did not exist at the time the Product was taken into use, nor when it was impossible to discover the existence of the defect.
19. Intellectual property
19.1. The Customer expressly acknowledges that the Products and all associated intellectual property are and will remain the exclusive property of ESAFE.
19.2. The Customer undertakes not to commit any acts that would violate the intellectual property rights of ESAFE or render them invalid, nor permit any third party to do so. These intellectual property rights include (without limitation) all patents, copyright, models, trademarks, or any industrial or intellectual property rights whatsoever.
19.3. The Customer will refrain from participating in full or in part and from authorising others to participate in reverse engineering, disassembly or decompilation of the Products, unless and insofar as this is expressly permitted pursuant to any applicable mandatory law.
19.4. The Customer also undertakes to take the necessary action to prevent any breach of the intellectual property rights of ESAFE, and to notify ESAFE when it becomes aware of any actual or suspected breach.
20. Force majeure/hardship
20.1. The parties cannot be held liable for any failure to fulfil their obligations caused by force majeure or hardship, specifically including all circumstances that were reasonably unforeseeable at the time the agreement was concluded and that are unavoidable, and that leave the parties unable to perform the agreement, or that would render the performance of the agreement more difficult, financially or otherwise, than normally envisaged. Force majeure events may include the following: illness, natural circumstances, flood, fire, strike or lockout, business organisational circumstances, war, seizure, embargo, government measures, supply chain delays, export prohibitions, general shortage of merchandise, terror threats and/or acts of terror.
20.2. Force majeure events or hardship give either party the right to, at its discretion: (i) temporarily suspend the fulfilment of its obligations, (ii) review the contractual terms and conditions, or (iii) terminate the agreement by serving simple written notice to the other party, without such party owing any compensation at the time or in the future.
20.3. If a force majeure/hardship situation persists for longer than two months, either party has the right to terminate the agreement by serving simple written notice, without the Customer owing any compensation at the time or in the future.
21. Privacy
ESAFE processes the personal data of (potential) Customers and/or its staff in accordance with the provisions of ESAFE's privacy statement, which can be viewed on the Website. By purchasing the Products or entering into an agreement with ESAFE, the Customer acknowledges to have read this privacy statement and to accept it.
22. Compensation
ESAFE and the Customer will, automatically and by operation of law, compensate and set off any current and future debts they have vis-à-vis one another. This means that in the permanent relationship between the parties, only the largest claim remains outstanding after the aforementioned automatic set-off. In any case, this set-off will be opposable to the administrator and the other concurrent creditors.
23. Choice of law and competent court
23.1. All disputes that may arise between ESAFE and the Customer will be settled amicably insofar as possible. If the parties fail to find an amicable solution, they are free to bring their dispute before the courts and tribunals of the place in which the registered office of ESAFE is located.
23.2. The laws of Belgium are applicable.