Date of last amendment: 2 March 2023
Home - General terms and conditions
These terms and conditions apply to every offer, quotation and agreement between Benjamin Samaey, hereinafter referred to as "Benjamin Samaey", and a Client to which Benjamin Samaey has declared these terms and conditions applicable, insofar as these terms and conditions have not been expressly deviated from by the parties in writing.
These terms and conditions shall also apply to agreements with Benjamin Samaey, the performance of which requires the involvement of third parties by Benjamin Samaey.
The applicability of any purchase or other conditions of the Client is expressly rejected.
If one or more provisions of these general terms and conditions should at any time be wholly or partially void or nullified, the provisions of these general terms and conditions shall remain fully applicable. Benjamin Samaey and the client will then consult in order to agree on new provisions to replace the void or nullified provisions, taking into account as much as possible the purpose and meaning of the original provisions.
If ambiguity exists regarding the interpretation of one or more provisions of these general terms and conditions, an explanation should be given 'in the spirit' of these provisions.
If a situation arises between the parties that is not regulated in these general terms and conditions, this situation is to be assessed in the spirit of these general terms and conditions.
If Benjamin Samaey does not always require strict compliance with these terms and conditions, this does not mean that the provisions thereof do not apply, or that Benjamin Samaey would to any extent lose the right to require strict compliance with the provisions of these terms and conditions in other cases.
All quotations and offers from Benjamin Samaey are without obligation, unless the quotation states a period for acceptance. If no acceptance period has been set, no rights whatsoever can be derived from the offer or quotation if the product to which the offer or quotation relates is no longer available in the meantime.
Benjamin Samaey cannot be held to its quotations or offers if the Customer can reasonably understand that the quotations or offers, or any part thereof, contain an obvious mistake or clerical error.
The prices stated in an offer or quotation are exclusive of VAT and other government levies, any costs to be incurred in the context of the agreement, including travel and accommodation, shipping and administration costs, unless otherwise stated.
If the acceptance (whether or not on minor points) deviates from the offer included in the quotation or offer, Benjamin Samaey will not be bound by it. The agreement will then not be concluded in accordance with this deviating acceptance, unless indicated otherwise.
A composite quotation does not oblige Benjamin Samaey to perform part of the order at a corresponding part of the quoted price. Offers or quotations do not automatically apply to future orders.
The agreement between Benjamin Samaey and the Client is entered into for an indefinite period, unless the nature of the agreement dictates otherwise or if the parties expressly agree otherwise in writing.
If a deadline has been agreed or given for the performance of certain activities or for the delivery of certain goods, this shall never be a deadline. If a deadline is exceeded, the Client must therefore give Benjamin Samaey written notice of default. Benjamin Samaey must thereby be offered a reasonable period in which to still perform the agreement.
Benjamin Samaey shall perform the agreement to the best of his knowledge and ability and in accordance with the requirements of good craftsmanship. All this based on the current state of the art.
Benjamin Samaey has the right to have certain work performed by third parties.
If, within the framework of the assignment, work is performed by third parties engaged by Benjamin Samaey at the client's location or at a location designated by the client, the client shall provide the facilities reasonably required by those employees free of charge.
Delivery is ex factory of Benjamin Samaey. The Client is obliged to take delivery of the goods at the time they are made available to him. If the Client refuses to take delivery or fails to provide information or instructions necessary for delivery, Benjamin Samaey will be entitled to store the goods at the Client's expense and risk. The risk of loss, damage or reduction in value shall pass to the Client at the moment when goods are made available to the Client.
Benjamin Samaey is entitled to execute the agreement in several phases and to invoice the part thus executed separately.
If the agreement is executed in phases, Benjamin Samaey may suspend the execution of those parts that belong to a subsequent phase until the Client has approved the results of the preceding phase in writing.
The Client shall ensure that all data, which Benjamin Samaey indicates are necessary or which the Client should reasonably understand are necessary for the execution of the agreement, are provided to Benjamin Samaey in good time. If the data required for the performance of the agreement have not been provided to Benjamin Samaey in time, Benjamin will be entitled to suspend the performance of the agreement and/or to charge the extra costs arising from the delay in accordance with the usual rates then in force. The execution period will only start after the Client has provided Benjamin Samaey with the data. Benjamin Samaey shall not be liable for damage, of whatever nature, as a result of Benjamin Samaey having relied on incorrect and/or incomplete data provided by the Client.
If during the execution of the agreement it appears that for a proper execution it is necessary to amend or supplement it, the parties shall adapt the agreement in good time and in mutual consultation. If the nature, scope or content of the agreement is changed, whether or not at the request or indication of Principal, of the competent authorities, etc., and the agreement is thereby changed in qualitative and/or quantitative respect, this may have consequences. for what was originally agreed. This may also increase or decrease the originally agreed amount. Benjamin Samaey will quote in advance as much as possible. An amendment to the agreement may also change the originally stated period of execution. The client accepts the possibility of amending the agreement, including the change in price and term of execution.
If the agreement is amended, including an addition, Benjamin Samaey will be entitled to carry it out only after the person authorised within Benjamin Samaey has given his approval and the Client has agreed to the price and other conditions stated for the execution. , including the time to be determined at that time when it will be carried out. Failure to execute or not immediately execute the amended agreement does not constitute a default on the part of Benjamin Samaey and is no ground for the Client to cancel or terminate the agreement.
Without being in default, Benjamin Samaey may refuse a request to amend the agreement if this may have qualitative and/or quantitative consequences for, for example, the work to be performed or goods to be delivered in that context.
If the Client fails to duly comply with what he owes Benjamin Samaey, the Client shall be liable for all damage on the part of Benjamin Samaey caused directly or indirectly as a result.
If Benjamin Samaey agrees with the Client on a fixed fee or fixed price, Benjamin Samaey shall nevertheless be entitled at all times to increase this fee or price without the Client having the right to dissolve the agreement for that reason, if the increase in the price results from a power or obligation under the law or regulations or is the result of an increase in the price of raw materials, wages et cetera or on other grounds that were not reasonably foreseeable at the time the agreement was concluded.
If the price increase, other than as a result of an amendment to the agreement, amounts to more than 10% and takes place within three months of the conclusion of the agreement, only the Client who is entitled to Title 5 paragraph 3 of Book 6 of the Dutch Civil Code is entitled to dissolve the agreement by written declaration, unless Benjamin Samaey is still willing to execute the agreement on the basis of what was originally agreed.
if the price increase results from a power or obligation of Benjamin Samaey under the law;
if it is stipulated that the delivery will take place more than three months after the conclusion of the agreement;
or, on delivery of an item, if it has been stipulated that delivery will take place more than three months after the purchase.
Benjamin Samaey will be authorised to suspend the fulfilment of the obligations under the agreement if the client fails to fulfil his obligations under the agreement or fails to do so at the same time or in full, after the conclusion of the agreement, Benjamin Samaey will be entitled to to achieve that the client will not fulfil his obligations if the client, when concluding the agreement, has been asked to provide security for the fulfilment of his obligations arising from the agreement and this security is insufficient or if the delay on the part of the client means that Benjamin Samaey can no longer be confirmed to fulfil the agreement under the originally agreed conditions.
Furthermore, Benjamin Samaey will be entitled to dissolve the agreement if circumstances arise of such a nature that fulfilment of the agreement is impossible or if confidential circumstances arise of such a nature that Benjamin Samaey cannot reasonably be expected to confirm the dissolution of the agreement.
If the agreement is dissolved, Benjamin Samaey's events against the Client are immediately claimable. If Benjamin Samaey suspends the fulfilment of its obligations, it shall retain its claims under the law and the agreement.
If Benjamin Samaey proceeds with suspension or dissolution, it will not be liable in any way to compensate for damages and costs in any way whatsoever.
If the dissolution is attributable to the client, Benjamin Samaey will be co-responsible for compensating the damage, including costs, caused directly or indirectly.
If the client fails to fulfil his obligations under the agreement and this non-fulfilment is a resolutive justification, Benjamin Samaey shall be liable to dissolve the agreement immediately and with immediate effect without any rounding off on his part to the payment of any indemnity, while the client, from default , however, a declaration of indemnity is required.
If interim interim times are announced by Benjamin Samaey, he shall, in consultation with the client, arrange for the transfer of work yet to be performed to third parties. This unless the promise is attributable to the client. If the transfer of the work involves extra costs for Benjamin Samaey, these will be charged to the client. The client is obliged to pay these costs within the aforementioned period, unless Benjamin Samaey proves otherwise.
In the event of liquidation, (application for) suspension of payment of bankruptcy, seizure - if and for as long as the seizure has not been lifted within three months - of the client, debt restructuring or any other circumstance as a result of which the client's assets are no longer at his disposal, Benjamin Samaey will be free to terminate the agreement immediately and with immediate effect or to cancel the order, without any obligation on his part to pay any damages. Benjamin Samaey's results against the Client shall in that case be immediately due and payable.
If a placed order is annulled in whole or in part, the work carried out and the finished goods placed for it, plus any delivery and delivery costs, shall be deducted and the working time reserved for the execution of the work shall be charged in full to the customer.
Benjamin Samaey shall not be obliged to fulfil any obligation towards the Client if he is prevented from doing so as a result of a circumstance that is not attributable to fault and is not for his account by virtue of the law, a legal act or generally accepted practice.
In these general terms and conditions, force majeure shall be understood, in addition to its definition in the law and jurisprudence, to mean all external causes, foreseen or unforeseen, over which Benjamin Samaey cannot exercise any influence but which prevent Benjamin Samaey from fulfilling his obligations. This includes strikes at Benjamin Samaey's company or third parties. Benjamin Samaey shall also be entitled to invoke force majeure if the circumstance preventing (further) performance of the agreement occurs after Benjamin Samaey should have fulfilled his obligation.
Benjamin Samaey may suspend the obligations under the agreement during the period of force majeure. If this period lasts longer than two months, either party will be entitled to dissolve the agreement, without any obligation to compensate the other party for damages.
at the time of the occurrence of force majeure, his obligations under the agreement have already been partially fulfilled or will be able to be fulfilled and the fulfilled or still to be fulfilled part has independent value, Benjamin Samaey is entitled to invoice the part already fulfilled or still to be fulfilled. The client is obliged to pay this invoice as if it were a separate agreement.
Payment must always be made within 30 days of the invoice date, in a manner to be indicated by Benjamin Samaey in the currency invoiced, unless otherwise indicated in writing by Benjamin Samaey. Benjamin Samaey is entitled to invoice periodically.
If the Client fails to pay an invoice on time, the Client shall be in default by operation of law. Client shall then owe interest of 10% per month with a minimum of €50 unless the statutory interest rate is higher in which case the statutory interest rate shall be due. The interest on the amount due and payable shall be calculated from the moment the Client is in default until the moment of payment of the amount due in full.
Benjamin Samaey is entitled to apply payments made by the Client firstly to reduce the costs, then to reduce the interest due and finally to reduce the principal sum and current interest. Benjamin Samaey may, without thereby being in default, refuse an offer of payment if the Client indicates a different order for the allocation of payment. Benjamin Samaey may refuse full repayment of the principal sum if this does not also include the interest still due and current interest and collection costs.
The Client is never entitled to set off the amount owed to Benjamin Samaey. Objections to the amount of an invoice do not suspend the payment obligation. The Client not entitled to invoke section 6.5.3 (articles 231 to 247 of Book 6 of the Dutch Civil Code) is also not entitled to suspend payment of an invoice for any other reason.
If the Client is in default or absence in the (timely) fulfilment of its obligations, all reasonable costs incurred to obtain satisfaction out of court shall be borne by the Client. The extrajudicial costs shall be calculated on the basis of what is customary in Belgian collection practice. However, if Benjamin Samaey has incurred higher collection costs that were reasonably necessary, the actual costs incurred will be eligible for compensation. Any judicial and execution costs incurred will also be recovered from the Client. The Client shall also owe interest on the collection costs due.
The goods delivered by Benjamin Samaey in the context of the agreement remain the property of Benjamin Samaey until the Customer has properly fulfilled all obligations under the agreement(s) concluded with Benjamin Samaey.
Any goods delivered by Benjamin Samaey that are subject to retention of title pursuant to paragraph 1 may not be resold and may never be used as a means of payment. The client is not authorised to pledge or in any other way encumber any items subject to retention of title.
Any domain name to be purchased and thus registered by Benjamin Samaey for the creation of websites or web shops always remains the property of Benjamin Samaey, unless stated otherwise in writing. Domain names can be bought back at any time.
The Client must always do everything that can reasonably be expected of him to secure Benjamin Samaey's property rights. If third parties seize goods delivered under retention of title or wish to establish or enforce rights to them, the Client is obliged to inform Benjamin Samaey of this immediately. Furthermore, the Client undertakes to insure and keep insured the goods delivered under retention of title against fire, explosion and water damage as well as against theft and to provide Benjamin Samaey with the insurance policy on demand. Benjamin Samaey shall be entitled to these tokens in the event of any insurance payment. Insofar as necessary, the Client undertakes vis-à-vis Benjamin Samaey in advance to cooperate with everything that may prove necessary or desirable in this context.
In the event that Benjamin Samaey wishes to exercise its property rights indicated in this article, the Client now gives unconditional and irrevocable permission to Benjamin Samaey and third parties to be appointed by Benjamin Samaey to enter all those places where Benjamin Samaey's property is located and to take it back.
Principal is obliged to examine the delivered goods (or have them examined) immediately at the moment the goods are made available to him or the relevant activities have been carried out, respectively. In addition, Principal shall examine whether the quality and/or quantity of the goods delivered corresponds to what has been agreed and meets the requirements the parties have agreed in this respect. Any visible defects must be reported in writing within seven days of delivery. Any non-visible defects must be reported to Benjamin Samaey in writing immediately, but no later than fourteen days after their discovery. The report must contain as detailed a description of the defect as possible, so that Benjamin Samaey is able to respond adequately. The Client must give Benjamin Samaey the opportunity to investigate a complaint or have it investigated.
If the Client complains in time, this does not suspend his payment obligation. The Client is in that case also obliged to accept and pay for the items otherwise ordered and what he has instructed Benjamin Samaey to do.
If a defect is reported later, the Customer is no longer entitled to repair, replacement or compensation.
If it is established that a good is defective and a timely complaint has been made about it, Benjamin Samaey will, at the discretion of Benjamin. Samaey, replace or arrange for repair thereof or pay a replacement fee to the Client. In the event of replacement, the Client shall be obliged to return the replaced item to Benjamin Samaey and transfer ownership thereof to Benjamin Samaey, unless Benjamin Samaey indicates otherwise in writing.
If it is established that a complaint is unfounded, the costs incurred as a result, including research costs, on the part of Benjamin Samaey, will be borne in full by the Client.
Notwithstanding the statutory limitation periods, the limitation period for all claims and defences against Benjamin Samaey and the third parties engaged by Benjamin Samaey in the performance of an agreement is one year.
Should Benjamin Samaey be liable, such liability shall be limited to what is regulated in this provision.
Benjamin Samaey shall not be liable for damage, of whatever nature, arising because Benjamin Samaey has relied on incorrect and/or incomplete information provided by or on behalf of the Client.
Should Benjamin Samaey be liable for any loss or damage, Benjamin Samaey's liability shall be limited to a maximum of twice the invoice value of the order, or at least that part of the order to which the liability relates.
In any event, Benjamin Samaey's liability shall always be limited to the amount paid by its insurer in the relevant case.
Benjamin Samaey is only liable for direct damages.
Benjamin Samaey is only liable for damage caused by his own works and materials, not for modifications to the original work carried out by third parties.
Direct damage is exclusively understood to mean the reasonable costs incurred to establish the cause and extent of the damage, insofar as the establishment relates to damage within the meaning of these conditions, any reasonable costs incurred to compensate for Benjamin Samaey's faulty performance. agreement, insofar as they can be attributed to Benjamin Samaey, and reasonable costs incurred to prevent or limit damage, insofar as the Client proves that these costs led to a limitation of direct damage as referred to in these general conditions. Benjamin Samaey shall never be liable for indirect damage, including consequential damage, loss of profit, missed savings and damage due to business interruption.
The limitations of liability set out in this article do not apply if the damage is due to intent or gross negligence on the part of Benjamin Samaey or its managing subordinates.
The Client indemnifies Benjamin Samaey against any claims by third parties who suffer damage in connection with the performance of the agreement and the cause of which is attributable to parties other than Benjamin Samaey. If Benjamin Samaey is sued by third parties for this reason, the Client shall be obliged to assist Benjamin Samaey both in and out of court and immediately do all that may be expected of him in that case. Should the Client fail to take adequate measures, Benjamin Samaey will be entitled, without notice of default, to take such measures himself. All costs and losses incurred on the part of Benjamin Samaey and third parties as a result will be entirely at the expense and risk of the Client.
Benjamin Samaey reserves the rights and powers vested in him under the Copyright Act and other intellectual laws and regulations. Benjamin Samaey is entitled to use the knowledge gained by its side during the execution of an agreement for other purposes as well, to the extent that no strictly confidential information of the client is brought to the knowledge of third parties.
Belgian law applies exclusively to all legal relationships to which Benjamin Samaey is a party, even if an obligation is wholly or partly performed abroad or if the party involved in the legal relationship is domiciled there. The applicability of the Vienna Sales Convention is excluded.
The court in Benjamin Samaey's place of business has exclusive jurisdiction to take cognisance of disputes, unless otherwise prescribed by law. Benjamin Samaey shall nevertheless be entitled to submit the dispute to the court with jurisdiction according to the law.
The parties will only resort to court after they have made every effort to settle a dispute by mutual agreement.
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