TERMS AND CONDITIONS (BE)

I. GENERAL

1. Application

These general terms and conditions are applicable to the agreements concluded between NV Blommaert, having its registered office at 2110 Wijnegem, Stokerijstraat 35, KBO 0418.126.715 and with a permanent establishment in the Netherlands trading under the name “Blommaert Nederland” at 3089 JE Rotterdam Ophemertstraat 42 NL 8103.63.252.B01 (and KVK 24328726) (hereinafter “Blommaert”) on the one hand and the Customer on the other hand, unless these parties expressly deviate from them in writing.

2. Conclusion of the agreement

2.1. The contract shall be deemed to have been concluded when, following receipt of an order/assignment, Blommaert has given written notice to accept the order/assignment.

2.2. If Blommaert has set a deadline for acceptance in its offer, the contract is only deemed to have been concluded if the Customer gave written notice of its acceptance of the offer before the expiry of this deadline and the notice was also received by Blommaert within this deadline.

2.3. Changes to Blommaert’s offer are only valid if accepted in writing by Blommaert. 

2.4. If the Customer provides information to Blommaert, Blommaert may assume its accuracy and completeness and will base its offer on the information accordingly.

3. Payment

3.1. All payments shall be made in EURO or in the currency set out in the agreement. All present and future taxes, and additional charges and costs, of any kind, related to the agreement are at the Customer’s expense.

3.2. If the Customer fails to pay within the agreed payment term, the entire amount due becomes due and Blommaert may suspend its obligations.

3.3. If the Customer fails to pay within the agreed period, Blommaert is entitled, as of the following day, by operation of law and without notice of default, to (i) the payment of interest at the interest rate provided for in the Law of 2 August 2002 on combating late payment in commercial transactions and (ii) reasonable compensation amounting to 10% with a minimum of €250, without prejudice to its right to reimbursement of legal costs in accordance with the provisions of the Judicial Code.  

4. Financial guarantees

The Customer is obliged, at Blommaert’s first request, to provide security by means of a formal bank guarantee in favour of Blommaert for the payment of the amount due plus a 30% surcharge on the principal sum. No notice of default is required for this.

5. Termination clause

If an invoice is not paid on its due date, or in the event of non-compliance with article 4, the agreement shall be terminated by operation of law if Blommaert expresses its intention to enforce this by registered letter. In this case, Blommaert is entitled to take back the delivered goods without court intervention. In addition, the Customer shall owe Blommaert compensation of 10% of the price.

6. Force majeure

6.1. A failure to fulfil its obligations cannot be attributed to Blommaert if such failure is the result of force majeure. “Force majeure” includes (but is not limited to) the circumstance that third parties engaged by a Party such as suppliers, subcontractors and carriers, or other parties on which the Customer is dependent, fail to meet their obligations or fail to do so in a timely manner, weather conditions, storm, ice, snow, thunderstorm, flooding, lightning, crashing aircraft, natural hazards, terrorism, riot, strike, cybercrime, disruption of digital infrastructure, fire, power failure, theft, loss of tools, materials or information, road blocks, strikes or work stoppages and import or trade restrictions, government measures due to epidemic and/or pandemic, staff shortages due to epidemic and/or pandemic, …  

6.2. Blommaert is entitled to suspend the fulfilment of its obligations if it is temporarily prevented from fulfilling its obligations towards the client due to force majeure. Once the force majeure situation has lapsed, Blommaert will fulfil its obligations as soon as its schedule permits. If there is force majeure and performance remains impossible, Blommaert is authorised to dissolve the agreement in whole or in part with immediate effect. The parties shall not be entitled to compensation for any damage suffered or to be suffered as a result of the force majeure, suspension or termination within the meaning of this article.

7. Applicable law and competent courts

The agreement is governed by Belgian law. For any dispute between Blommaert and the Customer (irrespective of the basis), the courts of Antwerp, Antwerp Division have exclusive jurisdiction.

 

II. PROVISIONS APPLICABLE TO PURCHASE CONTRACTS AND CONSTRUCTION CONTRACTS

8. Drawings and descriptions

8.1. Weights, dimensions, capacities and other data included in catalogues, prospectuses, circulars, advertisements, illustrations and price lists are indicative by nature. These details are only binding insofar as the agreement expressly refers to them.

8.2. The drawings and technical descriptions provided to the Customer before or after the conclusion of the contract, on the basis of which full or partial manufacturing is possible, remain the exclusive property of Blommaert. They may not be used, copied, reproduced, transmitted to or disclosed to third parties by the Customer without Blommaert’s consent. The Customer also undertakes to respect Blommaert’s intellectual property rights at all times and acknowledges that it cannot assert any rights in this regard. In the event of breach of the aforementioned provisions, the Customer is bound to pay Blommaert fixed damages of €50,000 for each breach, without prejudice to Blommaert’s right to claim the greater loss suffered and to pursue other legal remedies.

9. Scope of work 

9.1. The Customer must ensure that all permits, authorisations, exemptions and other dispositions necessary to carry out the work are obtained in a timely manner. The Customer is obliged to send a copy of the aforementioned documents to Blommaert upon its first request.  

9.2. Blommaert never guarantees the safety and supervision of a vessel, crew and/or cargo on board a vessel. The ship is solely under the supervision of the captain and remains his responsibility at all times. This also applies if the vessel or barge is docked at Blommaert’s quay.

9.3. Blommaert is not responsible for the safety and supervision of the workplace or site, other than its own premises. The Customer shall provide a safe workplace/site. If multiple works are being carried out on a site, the Customer shall be responsible for appointing a safety coordinator.  

9.4. The Customer shall communicate the technical plans and plans of cables, pipelines and high-voltage cables etc.

as well as all other information necessary for the execution of the works to Blommaert. The Customer shall provide connections to and consumption of utilities (electricity, water, , …) within a radius of 10m, 380 V + N.

9.5. The Customer shall ensure that during Blommaert’s works, no other activities/works are carried out that are incompatible with Blommaert’s works. If a fire watch is required during the works, the Customer will provide it. The Customer shall also ensure that there are no flammable materials, cargo etc. near the works to be carried out.

9.6. Unless expressly agreed otherwise, Blommaert’s obligations do not include:

• taking measures to prevent or limit damage to or theft or loss of items present at or near the workplace;
• dismantling and removal of material/structures to be replaced;
• all preparatory measures necessary to make the vessel/structure ready for assembly;
• disposal of materials, construction materials or waste;
• vertical and horizontal transport.
  
  

10. Delivery and execution times

10.1.  A stated delivery time or execution period is indicative unless expressly stated otherwise. Exceeding the delivery time or execution period shall under no circumstances entitle the Customer to compensation or rescission. The Customer shall indemnify Blommaert against any third-party claims resulting from exceeding the delivery time or execution period.

10.2. If, contrary to Article 10.1, the Parties have agreed on a binding delivery or performance period, the following shall apply:

• If there are circumstances other than those known to Blommaert when it specified the delivery time or execution period, the delivery time or execution period shall be extended by the time Blommaert, taking into account its planning, requires to execute the order under these circumstances;
• In the event of additional work, the delivery time or execution period shall be extended by the time Blommaert, with due observance of its planning, requires to deliver (or arrange for the delivery of) the materials and parts thereof and to perform the additional work;
• If there is a suspension of obligations by Blommaert as a result of force majeure or as a result of non-fulfilment by the Customer of its obligations, the delivery time or execution period will be extended by the time it requires, taking into account its planning, to execute the order after the reason for the suspension has lapsed.
  
  

11. Surcharge and Price Review

11.1. Changes to the work shall in any case result in additional work including but not limited to the following cases: (a) there is an additional order, (b) there is a change in the original order, design, specifications or specifications, (c) the information provided by the Customer is incorrect or incomplete, (d) unforeseeable obstacles occur or (e) estimated quantities are exceeded by 5%. Any additional work is subject to an additional charge which will be calculated at the pricing factors in force at the time the additional work is carried out.

11.2. Unless expressly provided otherwise, any increase to the wage scales and the prices of raw materials and materials will give rise to a proportional adjustment of the price in accordance with the following price revision clause.

P = p0 (0,4 M/M0 +0,4 S/S0+0,2)

in which:

P = invoice price

P 0=first base price on date of offer

M 0=price of materials and raw materials on date of quotation 

M = price of the same raw material on date of supply

S0= the reference hourly wage plus social charges in the metalworking industry

(national or regional average), recognised by the Federal Public Service Economy, SMEs, Self-Employed and Energy and published by Agoria on the date of quotation,

S = same wage at date of commencement of performance

12. Payment terms

12.1. Unless otherwise agreed, the price for sales of bespoke goods and contract work other than maintenance work is payable as follows: 

• 10% upon signing the agreement/placement order,
• 35% three months before indicative delivery date,
• 50% at the latest on the date indicated in the notice in accordance with Article 13.2, 
• 5% one month after delivery or date made available.

12.2. Unless otherwise agreed, for sales of standard (“off the shelf”) goods and maintenance/service, the price is payable 30 days after the invoice date.

13. Delivery and passing of risk

13.1. Unless expressly agreed otherwise, the goods shall be delivered Ex Works Wijnegem, or Rotterdam as the agreement provides.

13.2. Blommaert informs the Customer, at least 7 days in advance, of the date on which the goods are ready for reception. The Customer must take delivery of the goods without delay. Unless a different date for acceptance has been expressly agreed, the risk shall pass to the Customer from the specified date  for acceptance. After 30 free days from

the specified date of receipt name, storage costs will be charged at the applicable standard rates €50.00/week per storage position (80m²), but the goods remain at the customer’s risk on quay,  in warehouse and/or other open space, subject to availability. Non- or non-timely acceptance of the goods by the Customer shall not entitle him to suspend his payment or other obligations.  

13.3. Unless expressly agreed otherwise, the goods always travel at the Customer’s risk.

 

14. Retention of title

Without prejudice to the provisions of article 13, the delivered goods remain the property of Blommaert until their price has been paid in full. The Customer undertakes not to sell or transfer the goods to third parties as long as they remain the property of Blommaert. The Customer undertakes to do what is necessary to make the retention of title enforceable against third parties at Blommaert’s first request and hereby expressly authorises Blommaert to enter the retention of title in the shipping register if so desired.

15. Delivery and acceptance

15.1. The goods or works are considered accepted/delivered in the following cases: 

• if the Customer has approved the goods/works by way of proof, e.g. a delivery note/work order signed without reservations;
• if the Customer has put the goods/works into use without notification within the meaning of Article 15.2. If the Customer takes part of the goods/works into use then that part is considered accepted/delivered; or
• if Blommaert has notified the Customer in writing of the date for acceptance of the goods or for completion of the work and the Customer has not addressed a notification within the meaning of Article 15.2 within eight days counting from the date specified therein for acceptance of the goods or for completion of the work.

15.2. If the Customer does not approve the goods/works, he is obliged to inform Blommaert thereof by registered letter within eight days, stating reasons. The Customer must give Blommaert the opportunity to still deliver remaining goods/works.

15.3. Acceptance/delivery shall have the effect that the Customer can no longer formulate claims due to alleged visible defects and non-conforming delivery. Acceptance of a good also implies receipt of all necessary documents belonging to it, e.g. certificates, instructions for use, etc.

16. Warranty for latent defects in the goods/works

16.1. Blommaert undertakes to remedy by replacement or repair all incontestable latent defects (to the goods or works themselves) which were present at the time of delivery/supply and which are not the result of force majeure, an error or omission on the part of the Customer or third party/parties. This obligation extends only to latent defects which manifest themselves within a period of one year from delivery and which are reported in writing within one month of their discovery. The claim must be brought to court no later than one year after its discovery, failing which the claim shall be extinguished.

16.2. However, no warranty is given  (i) on delivered goods that were not new at the time of delivery; (ii) on the inspection and repair of goods of the Customer; (iii)  if the Customer does not have the commissioning of the goods carried out by Blommaert and/or (iv) on the goods/works that the Customer commissions before Blommaert has presented them for delivery by way of delivery note/work report.

16.3. Voor de onderdelen waarvoor een fabrieksgarantie van een derde geldt, is de garantie en zijn de veprlichtingen van Blommaert onder de garantie beperkt tot de aanspraak van garantie waarop Blommaert beroep kan doen ten aanzien van de fabrikant/ verkoper. Deze wordt indien gewenst overgedragen aan de Klant, waarmee en waardoor Blommaert is gekweten.

16.4. Blommaert shall not be bound to any warranty or compensation other than that stipulated in 16.1 to 16.3 as a result of latent defects or non-conformity of the delivered/performed work. Thus, Blommaert shall, inter alia, not be liable for immaterial, indirect and/or consequential damages e.g. waiting times, demurrage and demurrage charges, loss of time, loss of business, loss of production, loss of profits, fines and/or similar charges, damage to third parties and/or damage to other goods, etc; this list is not exhaustive. Blommaert becomes the owner of the replaced parts. These items will be returned at the Customer’s expense.  

16.5. Blommaert is only obliged to perform the warranty if the Customer has fulfilled all its obligations. 

16.6. Also, Blommaert will not be obliged to compensate these damages on extra-contractual grounds 

16.7. The Customer shall indemnify Blommaert against all claims or demands that third parties could bring against it and that exceed Blommaert’s obligations regarding defects or non-conformity.

17. Liability of Blommaert

17.1. Blommaert ‘s liability with regard to latent defects in or non-conformity of the goods delivered and the works performed is governed by and limited to the provisions of article 16 of these terms and conditions. 

17.2. Otherwise, Blommaert is only liable for the actual damage and/or loss that is the direct consequence of its fault as proven. In any case, the burden of proof of Blommaert’s liability and of the extent of the actual damage lies with the Customer.

17.3. However, Blommaert shall never be contractually or extra-contractually liable for immaterial, indirect and/or consequential damage such as waiting times, demurrage and demurrage fees, loss of time, loss of business, loss of production, loss of profit; fines and/or similar levies, damage to third parties, etc.; this list is not exhaustive.

17.4. Moreover, Blommaert’s maximum liability is limited to 10% of the total purchase price/assignment price (excluding VAT) and, in the event of damage caused by delay, to 5% of the purchase price/assignment price (excluding VAT) of the goods delivered/work carried out late.

17.5. The limitations of liability do not apply in the event of intent on the part of Blommaert.

17.6. Any legal action against Blommaert must in any event be instituted within 12 months of delivery of the goods/completion of the work, failing which the claim shall be time-barred.

17.7.  The Customer undertakes to fully indemnify Blommaert for any liability claims made by third parties against Blommaert which are directly or indirectly related to the execution of the agreement and which exceed Blommaert’s liability as contractually agreed.

III. PROVISIONS APPLICABLE TO STORAGE AGREEMENTS

18. Contradictory state of finding – Access to the Goods

18.1. The storage agreement shall only take effect from the moment the goods have actually arrived at the storage facility and a statement of findings by means of a photo file has been drawn up by the Parties. The Statement of Findings is an integral part of the storage agreement.

18.2. Goods are stored in the open air. The Customer expressly declares to have knowledge of the specific circumstances in which Blommaert will perform the safekeeping and storage of the goods. The Customer accepts that outside normal business hours, the premises on which the goods are stored are not accessible and are fully locked. The Customer accepts that this form of monitoring is sufficient and does not request that additional security measures be taken.

18.3. Any handling within the storage area may only be carried out by Blommaert. If the Customer wishes to have access to the place where the goods are stored, he will contact Blommaert in advance to do so. Blommaert will accompany him to the warehouse location

of his goods in order to take back (part of) the goods there, if necessary, or to have additional goods stored, subject to observance of the provisions of art.18.1. 

19. Storage fee – Invoicing 

The storage fee, being the price of storage, is determined according to the type of hatch covers taken into storage and is invoiced monthly. Invoices are payable in cash. The storage fee does not include: the costs associated with loading and unloading and placing the goods, which are invoiced at Blommaert’s rates and which are notified to the Customer in advance. All reasonable costs incurred by Blommaert to preserve the goods shall be borne by the Customer.  

 

20. Termination of the storage agreement 

The parties may terminate the storage agreement subject to one (1) month’s notice.  Blommaert is obliged to return the goods placed into storage provided that the Customer has fulfilled all his payment obligations (due or not yet due) and the Customer is obliged to take back the goods given into storage before the expiry of the notice period against payment of the storage fee not yet paid, as well as any costs to be borne by the Customer. After the expiry of the notice period, the goods placed in safekeeping with Blommaert are at the cost and risk of the Customer, on the understanding that the obligation to pay storage fees continues until the moment the goods have been returned to the Customer or have been sold or destroyed by Blommaert.  

 

21. Return of goods

Blommaert is obliged to return the goods to the Customer or its legal successors in the condition they are in at the time of their return. Any damage they have undergone beyond his control shall be borne by the Customer. By accepting the goods, the Customer grants Blommaert full and irrevocable discharge for the proper performance of all its obligations.

22. Liability of Blommaert

22.1. While in storage, Blommaert should take care of the goods as a careful custodian. 

22.2. The state of finding, drawn up in accordance with Art.18.1 when the goods enter the warehouse and approved by the Customer, shall be the only admissible means of proof in case of damage or loss. 

22.3. Otherwise, Blommaert is only liable for the actual damage and/or loss that is the direct consequence of its fault as proven. In any case, the burden of proof of Blommaert’s liability and of the extent of the actual damage lies with the Customer.

22.4. Blommaert is in any event not liable for immaterial, indirect and/or consequential damage such as waiting times, demurrage and demurrage fees, loss of time, loss of business, loss of production, loss of profit; fines and/or similar levies, damage to third parties, etc.; this enumeration is not exhaustive.

22.5. Blommaert’s maximum liability is limited to €20,000.

22.6. The limitations of liability do not apply in the event of intent on the part of Blommaert.

22.7. All legal claims against Blommaert shall lapse six (6) months from the day of the return of the goods.

22.8. The Customer undertakes to fully indemnify Blommaert for any liability claims made by third parties against Blommaert which are directly or indirectly related to the execution of the agreement and which exceed Blommaert’s liability as contractually agreed.

23. Insurance 

The Customer undertakes to have the goods forming part of the storage itself insured against theft, fire, storm damage, etc. The Customer undertakes to obtain a “waiver of recourse” from the insurer, for the benefit of Blommaert, except for its intentional acts.  

24. Lien 

The Customer grants Blommaert (1) a conventional lien  (right of retention/suspension of return) on all goods it entrusts to Blommaert as a result of storage orders. Blommaert may exercise its lien on these goods as security for all claims which Blommaert has and will have against the Customer, even if these claims have a cause other than the storage order given. In the event of non-compliance with the terms of payment, as a result of which Blommaert must invoke the exercise of its right of retention, the Customer must be responsible for all additional costs, such as costs of storage and safekeeping.

25. Abandoned Objects 

Blommaert is authorised by the Customer, after the expiry of a period of one (1) year, counting from the day that Blommaert has requested the Customer, by means of a registered letter, to take back the goods, to take back these goods within the framework of the law of 21 February 1983 or article 3.60 of the Belgian Civil Code (future right), to sell them or take over ownership. Blommaert shall also be entitled to do so within one year after the Customer has ceased to pay the fees in connection with the deposit, without prior notice of default being necessary.