General terms and conditions
ARTICLE 1 - APPLICABILITY
Only the general terms and conditions from M-Creations set forth in this document are applicable to the agreements concluded between M-Creations and the Client, as well as to the services performed by M-Creations. They take precedence over all other conditions, promotions, offers and orders. They also take precedence over any of the Client’s conditions. Derogation from what is specified in these general terms and conditions is only possible on condition of written agreement between the parties. Through the mere fact that the Client makes a purchase or places an order, he acknowledges and accepts without reservation these general terms and conditions. To the extent that the provisions of these general terms and conditions should be in conflict with provisions included in other communication, orders or conditions of the Client, these general terms and conditions always take precedence.
ARTICLE 2 – OFFER AND ORDER
All promotions and offers from M-Creations are without obligation and thus non-binding on it, unless expressly otherwise agreed to. Neither are orders from the Client binding on M-Creations. An agreement is only concluded between M-Creations and the Client when an order confirmation or any other written agreement is signed by the M-Creations manager. Representatives working for M-Creations or employees of M-Creations are not authorised to commit M-Creations to anything legally binding.
ARTICLE 3 – ADVANCE PAYMENT AND CANCELLATION
Immediately after the offer or order is signed by the parties, M-Creations shall bill a first advance payment of 30 % of the total of the agreed-upon price to the Client.
When the work begins, M-Creations shall bill a second advance payment of 40 % of the total of the agreed-upon price to the Client.
After delivery, the remaining balance in whole shall finally be billed to the Client.
The Client has the option until 14 calendar days after the offer or order is signed by the parties to cancel the work without stating any reason. In such a case, the Client nevertheless still owes the first advance payment, as described above, to M-Creations in order to cover the cancellation costs.
ARTICLE 4 - DELAY
The Client is obligated to communicate to M-Creations all data and information of use in the framework of executing the agreement.
The Client has the option of requesting a delay before the start of the execution of the agreement by M-Creations, as long as the period between the conclusion of the agreement and the start of its execution does not come to more than 1 month. The aforementioned delay can furthermore only be requested up to 10 calendar days before the prearranged date for the start of the execution of the agreement.
If the execution of the agreement however is delayed solely through the action of the Client by more than 3 months, then M-Creations has the right to terminate the agreement with immediate effect and furthermore M-Creations assert a claim to compensation for damages in the amount of 30 % of the total of the agreed-upon price.
M-Creations can delay the start of work if unforeseen circumstances arise, provided the Client is notified of this within 14 calendar days and at the latest on the proposed starting date.
Article 5 – EXECUTION
The work will be carried out according to the planning by M-Creations and according to the standards of good practice, specified by M-Creations or in absence of this, in the technical regulations of the WTCB, the “Belgian Building Research Institute”.
The Client must grant M-Creations access to the site between 07:00 AM and 7:00 PM during the period of the work. The Client is also required during this period to provide sufficient parking space in front of the entrance to the site, or at least as close as possible to it. If the Client fails to provide such parking space, M-Creations shall request a “no parking” order fulfilling the same purpose from the competent authorities. M-Creations can bill the costs of this request, along with a charge of € 100.00 for administrative costs, to the Client.
All materials and goods which are necessary for the work will be brought to the site at risk to M-Creations. The Client must however make sure that the site can be reached easily and safely (free of obstacles) and that the materials and goods can be stored in a secured and sheltered place on the site. Non-incorporated materials or goods remain the property of M-Creations as long as the invoice with reference to these materials or goods has not been paid.
The Client must make sure that the subsurface to be worked by M-Creations conforms to a normal degree of finishing and normal class of execution. At the very least the subsurface to be worked must be even, dry and sanded, as well as stable and immovable. If this subsurface is Gyproc, the Client must supply it with mesh tapes on the seams.
M-Creations will inspect the subsurface to be worked before the work is performed. If M-Creations determines in the course of its inspection that the conventional tolerances were not observed, it can inform the Client of this or suggest the improvement or preparatory work itself. Unless otherwise expressly specified, such improvement or preparatory work is never provided in the offer from M-Creations. The Client will bear any added costs for such work.
For the duration of the work, the Client must provide water, electricity and heating, as well as (whether mobile or not) an accessible toilet.
If it is determined before or during the work that asbestos is present on the site, the Client must immediately take all necessary measures to remove it. M-Creations can suspend the work in the meantime.
M-Creations is responsible for proper removal of the waste and debris that result from the execution of work by M-Creations, and this at the latest at the moment of final acceptance of the work. No extra costs will be charged for this waste processing.
M-Creations can draw on the services of a subcontractor for the performance of part or even all of the agreed-upon work.
Any personnel or employees of M-Creations, who execute the agreed-upon work will perform it under the direction, authority and responsibility of M-Creations. These personnel or these employees are in no way associated with the Client. Guidelines which are given by the Client with respect to the performance of the work can under no circumstances be interpreted as an instruction which is indicative of any employer-employee relationship.
Article 6 – DELIVERY – WARRANTY – LIABILITY
Barring any written provision stating otherwise, it is agreed that to the extent that the Client has not sent any remarks/complaints by registered letter to M-Creations within 8 calendar days of the completion of the work by M-Creations, the work will be deemed to have been definitively accepted by the Client. This date will consequently be deemed equivalent to the sole and final acceptance of the work.
The following can by no means be qualified as defects in conformity, visible defects, or concealed defects: slight differences or deviations in the colour or texture of the work to the extent that these cannot be prevented from a technical point of view or are generally accepted or are specific to the materials and/or products used.
Complaints regarding concealed defects must be communicated to M-Creations by registered letter in detail within three workdays after being discovered, under penalty of forfeiture. It is the Client’s responsibility to prove the exact moment when the concealed defect was discovered. There is no presumption of fault, nor of culpability.
M-Creations grants to the Client a warranty of six months from the moment of final acceptance on all work completed.
No warranty at all is granted for any repairs done. Neither is any warranty granted with respect to any work completed that was the object of an accident, inattentiveness, modifications, insufficient diligence, careless storage or maintenance or misuse. Damage caused by force majeure (e.g. frost or moisture damage, fissures or cracking in a residence that is still settling, sodium nitrate bleeding, broken pipes, …) is also excluded from the warranty extended.
The liability of M-Creations with respect to any products delivered and/or used is always limited to the warranties extended by the manufacturer. In this sense the Client accepts and recognises that M-Creations can deny to the Client the exceptions, exemptions and limitations to warranties which the manufacturer can call on with respect to M-Creations.
M-Creations pledges, prior to the conclusion of the agreement, to provide the Client with information with respect to the agreement. M-Creations is however not liable for the accuracy, completeness or exactitude of the information which is provided to the Client prior to concluding the agreement.
M-Creations is not liable with respect to the Client for serious errors or intentional faults committed by its employees, staff and/or workers in the course of the execution of their professional activities.
To the extent that M-Creations is dependent on the cooperation, services and goods of third parties in the performance of their work, it cannot be held liable for any damage proceeding from their errors, including any serious or intentional faults.
Except in the case of fraud, intentional faults or serious errors, the contractual or extra-contractual liability of M-Creations toward the Client is at all times limited to the amount that is covered by the liability insurance policy concluded by M-Creations.
Any claim by the Client to damages against M-Creations legally expires if it is not submitted to the competent court within a period of three years after the facts on which the claim is based were recognised by the Client or reasonably could have been recognised.
Article 7 – PRICE AND PAYMENT
All prices in promotions, offers, rates and price lists from M-Creations are strictly indicative, reserving a written clause stating otherwise.
M-Creations expressly reserves the right to raise the agreed-upon prices unilaterally if, after the agreement is concluded, one or more cost price factors (including but not limited to the prices of raw materials and energy and labour costs) undergoes an increase, and even if this occurs as a consequence of foreseeable circumstances.
M-Creations likewise reserves the right to unilaterally increase the agreed-upon prices, if the preliminary offer was made only on the basis of a (new-)building plan, without M-Creations being able to inspect the site area in question.
Additional work will always be carried out by M-Creations on an hourly basis at a fixed rate of € 47.00 per hour (excluding VAT).
The transportation costs for M-Creations will be borne by the Client. A fixed rate of at least € 0.67 per kilometre (excluding VAT) must be taken into account for these costs, taking the business headquarters of M-Creations as the point of departure.
The prices recorded on invoices from M-Creations are always in Euros. All taxes, fees and/or duties, of whatever kind, including new taxes, fees and duties which should be introduced after the conclusion of the agreement, are entirely borne by the Client.
The invoices of M-Creations are always payable at the latest 14 days after the date of the invoice, unless the parties agree otherwise in writing. Prompt and correct payment of invoices is essential for M-Creations.
In the event of tardy payment, the Client is legally and without dunning liable to pay interest in the amount of 1.00 % per month, to be counted starting from the due date of the invoice to the date of payment in full, as well as a fixed compensation for damages of 10 % of the billed amount, with a minimum of € 100.00, without prejudice to the right of M-Creations to demand higher compensation for damages.
In the event of failure to pay an invoice on the due date, moreover, all other as yet unpaid debt claims against the Client are legally callable and without prior notification of default. In that case, M-Creations also reserves the right to suspend the execution of all ongoing work, and this without notification of default and without compensation for damages.
If the Client is granted special terms of payment which permit it to settle outstanding amounts on different deadlines, then the Client shall, if it fails to meet a deadline, lose the advantage of the distributed payment and the full outstanding amount will be immediately claimable, including the conventional interests and penalty clause.
If at any moment there arise at M-Creations doubts concerning the creditworthiness of the Client on account of deeds of judicial execution brought against the Client, in the event of non-payment or tardy payment of one or more invoices and/or any other demonstrable development, M-Creations expressly reserves the right to demand payment in advance for work yet to be carried out, or demand other securities, even if the work has already been partly or wholly executed. If the Client refuses to honour such a request from M-Creations, M-Creations reserves the right to dissolve the agreement immediately, unilaterally and without any compensation. In such a case the Client is owed fixed compensation for damages of 30 % of the total price of the order.
Offsetting debts by the Client is expressly excluded.
In the absence of expressed and justified protest submitted by registered letter within eight calendar days of receipt by the Client, every invoice will be deemed irrevocably accepted.
Article 8 - FORCE MAJEURE
Each party is legally released and not required to fulfil any obligation to the counterparty in the event of force majeure. The term ‘force majeure’ is understood to mean the situation in which the execution of the agreement by one of the parties is wholly or partly, whether or not temporarily, hindered by conditions beyond the will of the party, even if this condition was already foreseeable at the time when the agreement was concluded. Without striving for exhaustiveness, all of the following will be regarded as cases of force majeure: exhaustion of supplies, delays or failure of deliveries by suppliers of one party, destruction of products as a result of accidents, machine breakdown, strike or lock-outs, fires, civil unrest, war, epidemics, flooding, high absenteeism, electrical disruptions or disruptions in information systems, internet, or telecommunications, decisions or interventions of the authorities (including the refusal to grant or revocation of a license), fuel shortages and faults or delays to be attributed to third parties. The party which appeals to force majeure is not obligated to demonstrate the exculpating and unforeseeable character which constitutes the condition of force majeure.
In the event of force majeure, the obligations of the affected party are suspended. The parties shall in such a case make all reasonable efforts in order to limit the consequences of the force majeure situation as much as possible. In the case that force majeure lasts longer than one month, the other party is entitled to dissolve the agreement without the intervention of the court, without it being possible for the party who appeals to force majeure to be required to pay any compensation to the other party.
Article 9 – PERSONAL DATA
Article 10 – SEVERABILITY
If any provision (or part thereof) of these general terms and conditions should prove unenforceable or be in conflict with a provision of compulsory law, this shall not influence the validity and enforceability of the remaining provisions of these general terms and conditions nor the validity and enforceability of that portion of the relevant provision that is not unenforceable or in conflict with a provision of compulsory law. In such a case, the parties shall, in good faith, negotiate to replace the unenforceable or conflictive provision with an enforceable and legally valid provision that most closely approximates the objective and scope of the original provision.
Article 11 – APPLICABLE LAW AND COURT OF JURISDICTION
All agreements to which these general terms and conditions apply, as well as all other agreements which proceed from it, are exclusively subject to Belgian law. The application of the Vienna Convention on the International Sale of Goods is explicitly rejected.
All differences between the parties concerning agreements which are subjected to these general terms and conditions, are exclusively subject to the authority of the courts of the district of the corporate headquarters of M-Creations.