GENERAL TERMS AND CONDITIONS OF SALE
Insofar as not stipulated otherwise in special terms and conditions or agreements, these general terms and conditions of sale apply to all offers and quotes made by Loyalty Solutions NV (Stationsstraat 127, 8780 Oostrozebeke) (“Loyalty Solutions”), to each agreement concluded between Loyalty Solutions and its customer (“Customer”) and to all invoices issued by Loyalty Solutions. In the case of contradiction between these general terms and conditions and any separate agreement concluded between Loyalty Solutions and the Customer, the stipulations of the separate written agreement prevail. Via the simple act of placing an order, the Customer acknowledges acceptance of these general terms and conditions. Acceptance of these general terms and conditions also implies that the Customer fully renounces the application of its own general (purchase) terms and conditions. The latter are binding on Loyalty Solutions only if Loyalty Solutions has explicitly accepted these in writing.
2. Price lists, offers, orders and formation of agreements
All Loyalty Solutions offers and price lists are without obligation, are intended for information purposes only, and are not binding on Loyalty Solutions. The latter is bound only by each order or work assignment placed by the Customer. An agreement is formed between Loyalty Solutions and the Customer only via the signing of an order confirmation or any other written agreement by an authorised representative of Loyalty Solutions. Intermediaries, representatives, appointees, salespersons, salaried and hourly employees of Loyalty Solutions are not authorised to legally bind Loyalty Solutions. In the case of cancellation by the Customer of an order within three (3) days after confirmation of the order by Loyalty Solutions, the Customer will owe fixed damage compensation equal to 15% of the agreed price, without prejudice to the right of Loyalty Solutions to claim greater damage compensation, subject to proof of the greater actual damage suffered.
Delivery times are provided for information purposes only and are non-‐binding, unless agreed otherwise in writing. Delays in delivery or exceeding the delivery periods cannot be the occasion for any liability on the part of Loyalty Solutions, for any type of damage compensation, or for cancellation of the order. Loyalty Solutions retains the right to make partial deliveries, which then constitute partial sales. The partial delivery of an order may not serve as justification for the refusal to pay for the goods delivered.
4. Price and payment
The order will be invoiced at the prices and conditions indicated in the order confirmation or in the price lists communicated by Loyalty Solutions. Barring other written agreements, the prices are excluding VAT and the transportation costs are for the Customer's expense. All agreed prices can be changed at any time, subject to simple notification to the Customer. Barring other written agreements, the invoices are payable to the bank account communicated by Loyalty Solutions within thirty (30) days after the invoice date. Each invoice is considered as accepted in the absence of protest by registered letter within ten (10) days after its receipt. Protest of the invoice does not suspend the Customer's payment obligation. In the case of full or partial non-‐payment by the due date, the Customer, pursuant to Article 5 of the Act of 2 August 2002 on combatting payment arrears in commercial transactions (as amended periodically), owes default interest, legally and without notice of default, for each already started month, plus fixed compensation of 12% of the invoiced amount, with a minimum of EUR 100, without prejudice to the right of Loyalty Solutions to claim greater damage compensation subject to proof of greater actual damage suffered. All collection charges are for the expense of the Customer. In the case of non-‐payment of one invoice by the due date, (i) Loyalty Solutions is also entitled to suspend the Customer's remaining orders until full payment of the invoice, without preliminary notice of default or damage compensation, and (ii) all other not yet overdue debts by the Customer are payable immediately, legally and without preliminary notice of default. Setoff on the part of the Customer is explicitly excluded. If the trust of Loyalty Solutions in the creditworthiness of the Customer is undermined by legal actions against the Customer and/or demonstrable other events that call into question confidence in the proper execution by the Customer of the concluded agreements and/or make such impossible, Loyalty Solutions retains the right, even if the goods have already been entirely or partially sent, to suspend the entire order or a part thereof, and to demand suitable guarantees from the Customer. If and as long as the Customer refuses to provide these, Loyalty Solutions retains the right, without the Customer being entitled to any damage compensation, to cancel the order or the not yet-‐delivered part thereof, without prejudice to the right of Loyalty Solutions to compensation for the damage. In the case of dissolution of the agreement due to actions of the Customer, the Customer shall pay damage compensation of at least 12% of the total price, without prejudice to the right of Loyalty Solutions to claim greater damage compensation subject to proof of greater actual damage suffered.
5. Transfer of ownership and risks
The delivered goods remain the property of Loyalty Solutions until full payment of the principal, interest, costs and possible damage compensation. Until the moment of full payment, the Customer shall attach a sign to the delivered goods that clearly and legibly indicates that the delivered goods are the property of Loyalty Solutions. The Customer is entitled to sell the goods to its customers on the understanding that Loyalty Solutions, due to its retention of ownership of the sold products, has the exclusive right to require the Customer to return the goods to Loyalty Solutions until the moment that ownership of the goods transfers to the Customer subject to the condition that the goods still exist, and if the Customer refuses to do so, to enter the buildings of the Customer or of a third party where the goods are located in order to retrieve the goods. The Customer agrees that Loyalty Solutions may enter its offices within the framework of the above-‐mentioned objectives. The advances paid by the Customer will not be returned and remain available as compensation for possible losses in the case of resale. Unless agreed upon otherwise, the risks associated with the goods will be transferred to the Customer from the moment that the sold goods are delivered.
6. Defects and guarantee
Upon delivery, the Customer must check whether the delivered goods exhibit visible damage or defects. Each complaint concerning visible defects, missing goods or a non-‐compliant delivery must be communicated to Loyalty Solutions by registered letter within five (5) days after receipt of the goods, with reference to the invoice number or the packing slip. After this period has expired, the goods are considered to have been accepted without reservation. Late complaints are inadmissible. Complaints do not suspend the Customer's payment obligation. Possible return of the goods shall only take place with the prior, written confirmation of Loyalty Solutions. Only goods in good condition and in their original packaging may be returned. All complaints for hidden defects that are not the result of force majeure, of an incorrect intervention by the Customer or by third parties, or due to normal wear, must to communicated to Loyalty Solutions by registered letter within one (1) month after discovery of the defect, and in any case within one (1) year after delivery of the goods. The guarantee provided by Loyalty Solutions for hidden defects covers only replacement or repair of the delivered good.
Loyalty Solutions (including its appointees, representatives and/or employees) is only responsible for damage caused due to noncompliance with its contractual obligations, if and insofar as this damage is caused by its fraud, deception or intentional or serious failure. In the event that Loyalty Solutions would be held liable for any damage, the maximum liability of Loyalty Solutions is always limited to the invoice value of the Customer's order, or to the part of the order that the liability concerns. Loyalty Solutions may never be held liable for indirect damage, lost profit, missed savings or damage to third parties. Only the Customer is responsible for the use it makes of the goods.
8. Force majeure
Loyalty Solutions is legally absolved and is not obliged to meet its obligations to the Customer in the case of force majeure (such as war, partial or general strikes, operational accidents, fire, equipment breakdowns, bankruptcy of suppliers, lack of raw materials, etc). Force majeure never entitles the Customer to terminate the agreement or to any form of damage compensation. Force majeure on the part of the Customer is explicitly excluded.
Loyalty Solutions has the right to terminate the agreement with the Customer at any time, with immediate effect, without judicial authorisation, without preliminary notice of default and without payment of any damage compensation, in the following cases: (i) if the Customer, despite a written notice of default in which a period of at least seven (7) calendar days is observed, remains in default with respect to the (timely) fulfilment of one or more obligations resulting from the agreement; (ii) in the case of suspension of payment or (the application for) bankruptcy protection (iii) in the case of liquidation or discontinuation of the activities of the Customer; or (iv) if (a part of) the assets of the Customer are seized. In the case of dissolution, Loyalty Solutions also retains the right to claim compensation for all costs and damage incurred, and all claims by Loyalty Solutions upon the Customer are payable immediately.
10. Intellectual property
Without prejudice to any written agreement stipulating otherwise, all intellectual property rights with respect to drawings, designs, calculations, etc., made by Loyalty Solutions at the expense of the Customer and submitted to the Customer, remain the property of Loyalty Solutions and are never transferred to the Customer.
If a (part of a) stipulation of these general terms and conditions would be invalid or unenforceable, this shall not affect the validity and enforceability of the other stipulations of these general terms and conditions. In such a case, Loyalty Solutions and the Customer shall negotiate in good faith, and the invalid or unenforceable stipulation will be replaced by a legally valid and enforceable stipulation that fits as closely as possible the objective and the intent of the original stipulation.
12. Applicable laws and jurisdiction clause
All agreements, to which these general terms and conditions apply, as well as all other agreements arising out of these, shall exclusively be governed by and construed in accordance with Belgian law. All disputes between Loyalty Solutions and the Customer fall under the jurisdiction of the competent courts of the legal district Kortrijk.