These General Terms and Conditions (hereinafter referred to as the “General Terms”) apply to every quotation issued by Toon De Somer The Office Interiors NV (hereinafter referred to as “TOI” or the “Seller”), to every order placed with TOI by a customer (hereinafter referred to as the “Customer”), as well as to any agreement concluded by the Seller with a Customer concerning the sale by TOI of one or more items specified in such quotation, purchase order, order confirmation, or sales agreement (hereinafter referred to as the “Items” or “Equipment”), including any amendments or additions thereto and any supplementary services provided therein (hereinafter referred to as the “Sales Agreement”).
The Customer’s general terms and conditions shall not be binding on TOI, regardless of their title and whether or not they appear (now or in the future) on the Customer’s order forms, order confirmations, or other documents. The Customer’s general terms and conditions shall only bind TOI if TOI has expressly accepted them in writing.
The Items may include, among others, furniture, chairs, lighting, and other office and/or interior equipment. To the extent that one or more provisions of the General Terms do not apply to a specific type of Item (for example, provisions regarding connection to the Customer’s electrical system may not apply to an office chair), those provisions shall have no effect with respect to that specific Item.
Article 1: Quotations, Orders, Formation, and Subject Matter of the Sales Agreement
1.1. All quotations issued by TOI are non-binding and are valid for a period of one month only. When placing an order, the Customer may not modify any provision of the quotation. The placement of an order shall always be considered a unilateral offer to contract by the Customer, even if the order refers to a quotation from TOI and/or coincides with the signing of an agreement (together with an employee or representative of TOI). A Sales Agreement (of which these General Terms and Conditions shall automatically form an integral part), as well as any related amendments or additions, shall only be concluded by and binding upon TOI once the management of TOI has accepted it in writing. TOI is not obliged to provide any reason in the event of non-acceptance.
1.2. A Sales Agreement concerns the sale by the Seller to the Customer, which the Customer accepts, of the Items specified in the special terms and conditions of the Sales Agreement (hereinafter referred to as the “Special Terms”) in exchange for payment by the Customer of the price stipulated in the Sales Agreement (hereinafter referred to as the “Purchase Price”).
1.3. The Customer declares that each Item/Equipment has been selected by the Customer themselves and is of a size, capacity, and design that meets their (quantitative and/or qualitative) requirements. The Customer acknowledges having received all necessary (technical) information to verify the foregoing at their own risk. The Customer hereby waives any right to invoke error or misjudgment in this regard.
The Customer shall, at their own cost and risk, ensure that the installation site is suitable for the installation of the Equipment, including all technical and spatial provisions as specified by the manufacturers and suppliers, and that the (electrical) wiring and connections are suitable for the Equipment to function properly, all in accordance with, among others, the regulations of the local energy provider. By concluding the Sales Agreement, the Customer acknowledges—unless they immediately make a reservation in writing by registered letter—that they have received all the aforementioned information, instructions, and documents in a timely manner, including all guidelines and requirements regarding the installation, use, and maintenance of the Equipment [including the terms and specific limitations of liability from third parties/suppliers from whom the Seller is themselves a purchaser].
1.4. The Customer shall fully indemnify the Seller in connection with the foregoing, including principal, interest, and costs.
Article 2: Delivery, Installation, and Use of the Items
2.1. Unless otherwise specified by the Seller, delivery of the Equipment shall take place ex works (EXW) from the factory or warehouse on the delivery date stated in the Special Terms, or within a maximum period of one month thereafter. Failure to comply with the delivery term shall not give rise to any claim by the Customer against the Seller. Any delay caused by force majeure or the fault of third parties shall entitle the Seller to consider the delivery period suspended for a duration equal to the period during which the force majeure or third-party fault exists (or existed).
2.2. The delivery of the Items shall be carried out—at the Customer’s expense—by the Seller or a carrier designated by the Seller, unless the Customer collects the Items themselves or arranges for collection. Any subsequent relocations and (re)installations must be separately agreed upon in accordance with the Seller’s applicable variable rates.
2.3. The risk relating to the Items shall pass to the Customer as soon as they leave the warehouse or factory.
2.4. The Customer may be required by registered letter to take delivery or collection of the Items at the Seller’s warehouses within eight days of the dispatch of such notice. After this period, the risk relating to these Items shall automatically pass to the Customer by operation of law. The Seller shall then have the right, by operation of law, to demand immediate payment of the invoiced amount for the Items, possibly increased by storage and other costs. The same procedure shall apply in the case of call-off deliveries.
2.5. Under penalty of forfeiture of any claim, the Customer must immediately report to the Seller any non-conformity and/or incompleteness of the Items upon delivery or collection (by email with acknowledgment of receipt, fax with proof of transmission, or by noting a reservation on the transport document, delivery note, or collection slip), with confirmation sent by registered letter within eight days.
2.6. If the Customer does not make an explicit written reservation upon delivery/installation (on the transport document and/or delivery note) or upon collection (on the collection slip), this shall automatically be deemed as confirmation on the part of the Customer that the Items were delivered/installed or collected in full, ready for use, free of defects, and in good and functional condition, and that the Customer has received, acknowledged, and accepted all installation, usage, and maintenance instructions and regulations [including the terms and specific limitations of liability from third parties from whom the Seller is itself a purchaser], as well as the technical and functional data of the Equipment.
Article 3: Retention of Title
The Items (including accessories) shall remain the property of the Seller until the Seller has received full payment of the Purchase Price, as well as any applicable default interest and additional charges. The Customer shall nevertheless bear the risk. The Seller reserves the right to reclaim unpaid Items and to invoke the rights of a secured creditor in respect of unpaid Items.
As long as the Items remain the property of the Seller, the Customer is prohibited from subleasing, pledging, transferring, or otherwise disposing of or processing them, whether for consideration or not.
Article 4: Warranty
4.1. Under normal use, the Seller provides a warranty on new Items against defects for a maximum period of 12 months after the transfer of risk, and on second-hand Items against defects for a maximum period of 6 months after the transfer of risk. This warranty is expressly limited to the obligation of the Seller, at its own discretion, to either repair the defect or replace the defective (part of the) Item. Furthermore, except in cases of gross negligence or willful misconduct by the Seller in connection with this warranty, which is addressed in Article 5, this warranty shall under no circumstances give rise to any liability of the Seller for direct and/or consequential damages (including, but not limited to, loss of profit) or any other obligations. Replaced parts shall become the property of the Seller. Replacement parts shall be new or reconditioned to the same quality.
4.2. The Seller’s warranty shall automatically lapse, among other cases, in the following situations: the use of spare parts or consumables not approved by the Seller; incorrect use of an Item (including failure to follow the instructions and regulations regarding installation, use, and maintenance); lack of protection against damage (including damage caused by dust, moisture, or climatic influences); technical interventions carried out by persons not affiliated with the Seller (including modifications and/or additions); lack of or incorrect maintenance (including in the event of suspension or termination of any Maintenance Agreement ordered by the Customer); and damage resulting from an accident or fault on the part of the Customer or a third party. The warranty does not cover consumables or parts subject to normal wear and tear. Repair or replacement of (parts of) the Item during the warranty period shall not extend the duration of the warranty. Transportation or travel costs are not included under the warranty. The warranty is only valid within the territory of Belgium.
4.3. Under penalty of forfeiture of the warranty, any visible defects must be reported immediately in writing to the Seller upon delivery or collection of the Items (by email with acknowledgment of receipt, fax with proof of transmission, or by noting a reservation on the transport document, delivery note, or collection slip), with confirmation sent by registered letter within eight days. Under penalty of forfeiture of the warranty, any other defects must be reported to the Seller by registered letter within the warranty period and no later than eight days after discovery. Filing a complaint, for any reason, even in accordance with the prescribed forms and deadlines, does not release the Customer from the obligation to pay punctually on the due date.
4.4. During the performance of the Seller’s warranty obligations, the Customer shall, at their own cost and risk, provide all necessary provisions, such as electrical power, lighting, auxiliary materials, and the like.
4.5. Any costs and services not covered by the Seller’s warranty obligations shall be invoiced to the Customer at the Seller’s applicable rates. The Seller shall, by operation of law, be entitled to immediately suspend its performance and interventions under the warranty if the Customer fails to comply with any of its contractual obligations (including, but not limited to, late payment, etc.).
Article 5: (Scope of) Liability
5.1. The Seller shall not be liable—without prejudice to its warranty obligations as set out in Article 4—for any direct and/or indirect damages (including, but not limited to, loss of profit) resulting from defects, downtime, malfunction, or improper functioning of the Items, except in cases of gross negligence or willful misconduct on the part of the Seller. Furthermore, except in cases of gross negligence or willful misconduct, the Seller shall not be liable for any direct and/or indirect damages caused by and/or arising from (delays in) the execution of repairs, the performance of work, or the replacement of parts, etc.
5.2. The Seller’s liability—except in cases where it is explicitly or implicitly contractually excluded—is limited to (i) material damage to the installations and property of the Customer and third parties, and (ii) bodily injury, which directly results from gross negligence or willful misconduct by the Seller committed in the performance of the Sales Agreement, with a maximum amount equal to the compensation provided by the Seller’s insurer or, in the absence of insurance coverage, €2,000 per incident (where a series of related and/or interconnected events shall be considered a single incident). All further liability for (the aforementioned) material and bodily damage is excluded.
5.3. Should the above provision be unenforceable at any time, the Seller’s liability shall, in any case, also be limited to a maximum amount equal to the compensation provided by the Seller’s insurer or, in the absence of insurance coverage, €2,000 per incident, as described above.
5.4. The Customer shall, where applicable, fully indemnify the Seller, including principal, interest, and costs, against all relevant claims brought by third parties.
Article 6: Non-Attributable Default
6.1. All circumstances which, in fairness and reasonableness, prevent the Seller from being required to perform (any part of) the Sales Agreement (including, but not limited to, non-delivery by a supplier of the Seller, third-party faults, storm, fire and water damage, explosion, power outage, strike, external price-increasing circumstances, incapacity of executing personnel or engaged third parties, government measures, shortages, etc.) shall be deemed non-attributable defaults. The Seller shall inform the Customer of such circumstances as soon as possible.
6.2. In the event of a non-attributable default on the part of the Seller, the performance of the Sales Agreement with respect to the affected part shall be suspended, without the Customer being entitled to any compensation, refund, or credit.
Article 7: Payments and Disputes
7.1. Unless explicitly and in writing otherwise agreed in the Special Terms, all prices of the Seller are expressed in Euro, excluding VAT, ex works (EXW) from the factory or warehouse, and net (i.e., excluding all costs, whether or not related to delivery and/or installation, such as insurance, transport, forwarding, packaging, administration, assembly, etc.). The Items may be invoiced as soon as the Sales Agreement has been concluded. If, prior to the delivery date, price differences arise for an Item due to increases in labor or raw material costs compared to the agreed Purchase Price, the Seller shall have the right to adjust the relevant price accordingly. The Items may be delivered in multiple shipments, in which case the Seller shall have the right to invoice each shipment separately.
All invoices, fees, and other amounts due shall be payable in cash at the Seller’s registered office, without discount, with all taxes and costs borne by the Customer. The Seller’s representatives and employees are not authorized to accept cash payments.
7.2. The Customer shall, by operation of law and without any notice of default being required, owe the Seller default interest on any late payment—whether invoiced or not—as provided under the Law of 2 August 2002 on combating late payment in commercial transactions, calculated from the due date until the date of full payment.
7.3. In addition, all collection costs incurred by the Seller—including, but not limited to, costs for removal/collection, appraisal, and transport, as well as judicial and extrajudicial collection costs—shall be borne by the Customer. These collection costs shall, by operation of law, be set at ten percent (10%) of each unpaid amount, with a minimum of €150, without prejudice to the Seller’s right to prove and claim higher collection costs. The aforementioned collection costs shall, by operation of law and without any notice of default being required, be due as soon as any amount remains unpaid by the Customer.
7.4. The Customer shall never be entitled to set off any amounts owed.
7.5. The fact that the Customer has opted for renting, leasing, or any other form of financing shall not constitute a suspensive condition for their obligations. If the relevant renting, leasing, or other form of financing cannot proceed for any reason whatsoever (even for reasons beyond the Customer’s control), this may not be invoked against the Seller to cancel or renegotiate the Sales Agreement. Failure to comply with this provision shall result in the application of Article 7 of these General Terms and Conditions at the Customer’s expense.
7.6. Complaints regarding invoicing must, under penalty of forfeiture, be submitted by registered letter within eight days of the invoice date.
Article 8: Default
8.1. If the Customer fails to fulfil any of its obligations arising from the Sales Agreement and does not remedy such failure within more than eight days following a notice of default from the Seller, the Seller shall, without prejudice to and in addition to any other rights it may invoke (including specific performance of the Sales Agreement), by operation of law have the right to immediately terminate the Sales Agreement in whole or in part to the detriment of the Customer and/or to claim appropriate damages from the Customer, without the Customer being entitled to any compensation. The Seller shall have the same rights if. (i) the Customer enters liquidation, obtains protection under an insolvency procedure under the WER, or is in a state of cessation of payments; (ii) control over the Customer, as defined in the Companies and Associations Code, changes; (iii) any attachment is made on (part of) the Equipment or other assets of the Customer; (iv) it is found that the Customer concealed or misrepresented facts or circumstances when entering into the Sales Agreement, such that, had the Seller been aware of them in time, the Sales Agreement would not have been concluded or would have been concluded under different conditions; or (v) any guarantees provided by the Customer and/or third parties for the benefit of the Seller have, in the Seller’s opinion, become insufficient.
8.2. If the Seller exercises its right of termination: (i) the Customer shall be obliged, at its own cost and risk, to return the relevant Items in their original packaging to the Seller’s registered office within 24 hours of termination; failing which, the Seller shall, by operation of law, be entitled to immediately repossess all such Items at the Customer’s cost and risk; and (ii) the aforementioned adjusted damages to which the Seller is entitled shall be at least equal to 30% of the total Purchase Price (excluding VAT) of the relevant Items, without prejudice to the Seller’s right to prove and claim higher damages.
In addition to and without prejudice to these damages, the Customer shall be liable to the Seller for the costs of repairing any damage.
8.3. In any case, the Customer shall, in addition to the foregoing, bear all judicial and/or extrajudicial costs incurred by the Seller as a result of or in connection with the Customer’s failure to fulfil its obligations under this Sales Agreement and/or its termination.
8.4. If and as long as the Customer fails to fulfil any of its obligations, the Seller shall, by operation of law and without any notice of default being required, be entitled to suspend its (technical) interventions and obligations (including its warranty obligations). The Customer shall never be entitled to any compensation or claim breach of contract in this regard. The Seller shall also have this right if the Customer fails to fulfil obligations unrelated to the Sales Agreement (e.g., in the event of partial or full non-payment of the Maintenance Fee under any separate Maintenance Agreement entered into). If the Seller suspends the performance of its obligations under this Sales Agreement, it may also suspend all of its obligations under other agreements (including maintenance under any separate Maintenance Agreement) or require the Customer to pay for all of the Seller’s services (including maintenance), at the Seller’s discretion, either in advance or at least in cash. The fact that the Seller suspends its obligations shall not result in an extension of the warranty period.
Article 9: General
9.1. The Sales Agreement shall be governed exclusively by Belgian law.
9.2. For all disputes relating to the Sales Agreement, only the courts of the Seller’s registered office shall have jurisdiction.
9.3. The failure or delay by the Seller in exercising any of its rights shall not affect the Seller’s right to exercise such rights at a later time or on another occasion.
9.4. Until the Purchase Price and any applicable interest and additional charges have been fully paid, the Customer shall notify the Seller of any change of registered office, operating address, or any other relevant information within three days, by registered letter.
9.5. If one or more provisions of this Sales Agreement (including these General Terms and Conditions) are, for any reason or cause, null or unenforceable, this shall not affect the validity of the remaining provisions or of the Sales Agreement as a whole. The parties shall immediately replace any invalid or unenforceable provision with a new provision that, as closely as possible, reflects the intention of the replaced provision.
9.6. All taxes (excluding income or corporate taxes of the Seller), levies, duties, and charges of any kind, whether now or in the future imposed on the amounts payable by the Customer and/or the Sales Agreement and/or in connection with the use and/or ownership of the Items, regardless of the name in which they are assessed, shall be borne by the Customer and shall be paid or reimbursed to the Seller upon first request, unless mandatory legal provisions provide otherwise.
9.7. The Customer acknowledges having taken note of all written and printed provisions of the Sales Agreement and declares that they accept its terms and conditions.
9.8. The Seller shall only be bound by written commitments confirmed by its management.
9.9. The Customer may not, in whole or in part, assign a Sales Agreement without the prior written consent of the Seller. Should such consent be granted by the Seller, the Customer shall, by operation of law and in addition to any other conditions and costs, (i) be obliged to pay the Seller an administrative fee of €750, and (ii) remain jointly and severally liable with the assignee for the performance of all obligations arising from the Sales Agreement.
9.10. The Seller shall be entitled to assign the Sales Agreement and/or the performance of its corresponding rights and/or obligations, in whole or in part, to a third party designated by the Seller, who shall, by operation of law, be able to invoke all rights, claims, and defenses that accrue to the Seller under the relevant Sales Agreement. By signing the Sales Agreement, the Customer irrevocably grants prior consent to such assignment.
9.11.TOI collects and processes the personal and company data it receives from the Customer for the purpose of performing the contractual relationship resulting from the Customer’s order/purchase, customer management, purchases, accounting, and direct marketing activities. The legal bases for processing are the performance of the agreement, compliance with legal and regulatory obligations, and/or legitimate interest (including offering the Customer new products and/or services). The data controller is Toon De Somer (Akkerstraat 17, 2970 Schilde).
These personal data will only be shared with processors, recipients, and/or third parties to the extent necessary for the purposes mentioned above. The Customer/Supplier is responsible for the accuracy of the personal and company data provided to TOI and undertakes to comply with the General Data Protection Regulation (GDPR) regarding the individuals whose personal data have been shared with TOI, as well as with respect to any personal data the Customer may receive from TOI and its employees.
If you/the Customer do not wish TOI to process your/his data for direct marketing purposes, it is sufficient to notify TOI via [[email protected]]. Through this address, you/the Customer may also at any time request which data TOI processes about you/the Customer and request their correction or deletion. The Customer/Supplier confirms that they have been adequately informed about the processing of their personal data and about their rights to access, correct, delete, and object.