GENERAL TERMS AND CONDITIONS
PAINTING WITH LIGHT
VERSION AUGUST 2023
Painting with Light BV, with registered office at 3600 Genk, C-Mine 127, registered in the Crossroads Bank for Enterprises under the number 0465.286.234 (hereinafter: "PWL") provides goods and services consisting of the design, installation and maintenance of various lighting and projection technology projects including the supply of the hardware.
Unless otherwise agreed in writing between the parties, these general terms and conditions (hereinafter "GTC") apply to each offer, quotation and order confirmation of PWL, and to each contract between PWL and a professional client (hereinafter "Client"). By placing an order for the supply of goods and/or performance of services, the Client agrees to the content and applicability of the present GTC, the language in which they are drafted, and the Client acknowledges having prior effective knowledge thereof. Furthermore, the Client expressly renounces the application of its own General Terms and Conditions.
Current GTC do not affect the special terms and conditions as agreed (if any) in a specific agreement with the Client. In case of discrepancy or contradiction between the provisions contained in current GTC and the special terms contained in a specific agreement, the special terms shall prevail.
2. Formation of the contract
Unless otherwise agreed by the parties in writing, all quotations issued by PWL are valid for a period of one (1) month from the date of issue. All provisions stated in an offer or price quotation of PWL are valid only on condition that they are accepted in full by the Client.
An order (for the supply of goods and/or services) based on the quotation is only an offer to contract. A contract is formed only when a separate contract is signed between the parties or when PWL has confirmed the order in writing (by order confirmation or by e-mail),or executes it by means of delivery of the goods and/or services, thereby waiving the conclusion of a separate written contract. PWL is entitled to refuse the order, for example, if the Client has outstanding debts towards PWL or if the ordered goods would be out of stock.
3. Changes to order and/or additional work
Once confirmed by PWL, an order cannot be modified nor cancelled by the Client except with the express written agreement of PWL (where appropriate, with the right to seek compensation for damages suffered by it).
Additional work or changes to the order will have the effect of automatically extending the target date specified in Article 4 in accordance with PWL's estimate. In no way can PWL be held liable for alleged damages due to extensions of target dates resulting from changes to the order or additional work requested by the Client.
Negotiations regarding additional work or changes to the order can in no way affect the performance of the initially agreed order. Neither party has the right to suspend its commitments as a result of negotiations concerning additional work or changes to the order.
4. Execution (deadline) and/or delivery (deadline)
At each stage of execution, the Client shall provide PWL with all data deemed necessary for the execution of the order in a timely manner. If the necessary information is not provided to PWL in a timely manner, PWL has the right to suspend the execution of the order and/or invoice the Client for the additional costs resulting from the delay.
Partial deliveries or partial performances by PWL are permitted. PWL reserves the right to invoice these partial deliveries and/or partial performances as the work progresses.
The execution and delivery deadlines communicated by PWL, even in an order confirmation, are always indicative and given in good faith, but are not binding. Failure to meet a performance deadline - to the extent permitted by law - does not entitle the Client to claim compensation or cancellation. PWL reserves the right to postpone performance until full payment by the Client of amounts due, on any account whatsoever.
All goods are delivered Ex-Works. Transportation and any insurance costs are always for the Client's account, unless expressly agreed otherwise.
If necessary for the execution of the order or if expressly requested by the Client, the period necessary for the execution of the order shall be reserved by PWL in its agenda. If the reserved period is postponed or rescheduled at the request of the Client, the latter shall, without prejudice to Articles 3, 5 and 11, be liable for compensation of PWL’s damages estimated as follows:
- 25% of the total amount if the order is postponed or rescheduled between four (4) and three (3) weeks before the start of the initially reserved period;
- 50% if the total amount if the order is postponed or rescheduled between three (3) and two (2) weeks before the start of the initially reserved period;
- 75% of the total amount if the order is postponed or rescheduled less than two (2) weeks before the start of the initially reserved period.
Unless otherwise agreed by the parties in writing, orders are invoiced at the prices stated on PWL's quotation and/or order confirmation.
Unless otherwise shown, prices are net and are shown exclusive of any applicable taxes, duties, VAT and/or levies, as well as delivery and packaging costs. Taxes, duties and/or levies that may be introduced or become applicable after the conclusion of the agreement shall be borne in full by the Client, unless otherwise agreed upon by the parties. Prices are always shown in euros.
PWL reserves the right to increase the agreed prices, even after the date of conclusion of the contract, because of a reason beyond the control of PWL (including through the actions of the Client), circumstances occur that have a significant and unforeseeable impact on the cost of the performance of the agreement on the part of PWL or if the performance of the services cannot commence and/or the delivery of the goods cannot take place within a reasonable period after the date of the originally scheduled start date or delivery date, or the performance of the services and/or the delivery of the goods is otherwise unreasonably delayed. An increase in the price is subject to prior notice to the Client. Such price increase shall be based on objective elements (e.g. price increase of one or more elements of the production chain and/or in case of price increase of the (raw) materials and/or material prices required for the goods, transport costs, labor costs, etc.), and shall be limited to a maximum amount of eighty percent (80%) of the final price and shall relate to the share represented by the material and/or labor in the final price.
The formula used in the context of a revision of the price is as follows:
[p = P x [40% x (s / S) + 40% x (i : I) + 20%].
PWL reserves the right to specify this formula for a project by adjusting the weighting coefficient for each cost parameter according to the actual representation of this cost parameter in the price of the project in question.
Unless otherwise stipulated in the specific agreement, the order will be invoiced according to the progress of the work already carried out and/or goods delivered.
However, PWL reserves the right, without prejudice to the provisions below, to require an advance payment in the amount of ten percent (10%) to fifteen percent (15%) from the Client for an order worth more than five hundred thousand euros (EUR 500,000).
No later than the time of execution of the order, the Client shall provide PWL with all information necessary to issue the invoices.
Except as otherwise agreed in writing between the parties, each invoice shall be payable in cash and without discount within thirty (30) calendar days of the Client's receipt of the invoice.
To be opposable to PWL, any protest of an invoice must be sent by registered mail to the latter within eight (8) calendar days of receipt of the invoice. This protest must be substantiated to be valid.
If at any time doubts arise for PWL as to the creditworthiness of the Client, including by acts of (judicial execution) against the Client, in the event of non-payment or late payment of one or more invoices, in the event of judicial reorganization and/or any other demonstrable events that (may) affect PWL's confidence in the proper performance of the undertakings entered into by the Client, PWL expressly reserves the right to suspend the performance of the services and/or delivery of the goods, to require a prior payment from the Client for the services/deliveries yet to be performed and/or to demand (other) securities or guarantees, even if the order has already been executed in whole or in part and/or the goods have already been shipped in whole or in part.
7. Late payment
When the invoiced amount has not been paid in full by the Client on the due date:
- The legal interest pursuant to the Belgian late payment law (wet van 02.08.2002 betreffende de bestrijding van de betalingsachterstand bij handelstransacties) shall automatically and immediately be due by the Client until the date of full payment.
- In the event of non-payment eight (8) calendar days after notice of default, the Client shall be liable for liquidated damages of ten percent (10%) of the total price, and this with a minimum of EUR 250.00 without prejudice to PWL's right to claim higher damages if its actual damages suffered are higher.
- PWL may recover from the Client its costs of recovering the outstanding debt.
The aforementioned fees are calculated on the total price of the relevant invoice, including taxes. Failure to pay an invoice on its due date shall result in the cancellation of any extension of payment granted (if any) by PWL, and all other outstanding debts of PWL to the Client shall become due and payable without prior notice.
PWL reserves the right to suspend (further) performance of the order in the event of an unpaid invoice on the due date.
8. Non-conformity and visible defects
The Client must report all complaints on account of non-conformity of the goods and/or the completed services to PWL itself within 48 hours after receipt of the goods. Visible defects must be reported within five (5) calendar days after receipt of the goods. These observations must be accompanied by photographs showing the non-conformity and/or visible defects, failing which there will be no intervention by PWL.
Furthermore, the Client must (subsequently) file all claims on account of non-conformity and/or visible defects within ten (10) calendar days after receiving the goods/completion of the services.
The use, processing or (re)sale of the goods deprives the Client of the right to make a complaint on account of non-conformity and/or visible defects. PWL is not liable for defects resulting from careless storage of the goods by the Client.
A complaint (if any) formulated by the Client does not in any way allow him not to fulfill his payment obligations with respect to the goods delivered.
If the Client does not report the non-conformity and/or visible defects (in a timely manner), the Client is presumed to have accepted the goods (irrefutably).
9. Hidden defects & warranty
Hidden defects mean defects in the goods or services performed which, although already existing at the time of purchase, are not visible to the Client after delivery and render the goods unfit for the use for which they are intended. PWL indemnifies the Client for hidden defects under the following conditions:
- The warranty applies only to the hidden defects covered by the manufacturer's warranty of the goods in question;
- Notwithstanding the above, any warranty period after delivery of the goods shall be limited to the period as communicated at the time of the order and in any case shall not exceed twelve (12) months if no shorter period has been communicated;
- Service under warranty can only be done by PWL;
- Any cost of secure transportation of the products to and from PWL’s service department, will be borne by the Client. The warranty period shall start when the goods haven been delivered to the Client (i.e. after the goods have left the warehouse of PWL). The warranty period for services starts from the date of final delivery of work (“definitieve oplevering”).
The warranty does not cover:
- Second-hand goods, consumables, software, etc.
- Faulty, inappropriate, abnormal, unauthorized or unsupported use of the goods or (if applicable) any use not in accordance with the technical data sheets and/or user manuals;
- Defects following (i) modifications to the goods performed by the Client or third party, (ii) repairs of the goods performed by the Client or a third party, or (iii) the resale of the goods by the Client;
- The warranty does not cover defects resulting from normal wear and tear, (lack of) maintenance of the goods and/or periodic check-ups;
- Defect following (i) use of spare parts, software or consumables, which are not compatible with the goods, (ii) connecting the goods to equipment not intended to be used by/with the goods;
- Defects caused by improper condition of the power supply network;
- Damage or costs resulting from the fact that a product is not conforming to country specific standards or specifications in another country than the country of purchase.
Any hidden defect shall be notified to PWL within fifteen (15) working days of becoming aware of the hidden defect and shall be supported by photographs substantiating the hidden defect. Failing this, there will be no intervention by PWL;
Complaints formulated by the Client do not in any way allow the Client not to fulfill its payment obligations with respect to the goods delivered.
If a non-compliant delivery, visible defect or hidden defect is effectively established by PWL and the conditions for intervention in warranty have been met, PWL has the option of either repairing the defective parts of the goods free of charge, replacing them, reducing the purchase price, or taking back the goods and refunding the purchase price without any further cause for additional compensation to the Client or termination of the contract.
Unless otherwise agreed in the specific agreement or additional warranty information, the costs for disassembling the goods/equipment, shipping and reassembling of the goods/equipment are borne by the Client.
It is the responsibility of the Client to backup and save any software files and programs before (returning the product for) repair and to restore the software files and programs afterwards.
PWL reserves the right to suspend its obligations under this Article 10 until full payment by the Client of amounts owed to PWL on any account whatsoever.
11. Termination of the Contract
Without prejudice to its right to statutory or conventional damages, PWL has the right to terminate the agreement with the Client, extrajudicially and without prior notice, at the expense of the Client in the event of contractual default, including but not limited to:
- Late or non-payment of amounts due to PWL;
- The late or non-disclosure of the documents and information required by PWL for the performance of the agreement;
- The appointment of a provisional administrator or court mandator on behalf of the Client;
- The manifest insolvency or credit rating losses of the Client, unless the Client provides PWL with additional guarantees and notwithstanding the provisions of Article 6;
- The initiation of dissolution or bankruptcy proceedings by the Client, the Public Prosecutor's Office or a third party and notwithstanding the provisions of Article 6;
The Client may only terminate the contract at the expense of PWL in the event of gross or intentional misconduct and after it has first given PWL formal notice thereof by registered letter and stating a remedy period of at least fifteen (15) working days.
The agreement to execute the order for the work/services may be terminated by the Client only pursuant to article 1794 of the Belgian Civil Code (Oud Burgerlijk Wetboek) upon payment of liquidated damages of twenty percent (20%) of the total price of the order, subject to PWL's right to claim a higher amount if the damages actually suffered by PWL (expenses, labor, lost profits, etc.) are higher.
12. Order fulfillment and liability
PWL cannot be held liable if damage is caused due not only to a defect in the goods, but also to an error or negligence on the part of the Client or person for whom the Client is responsible, or for misunderstandings or errors regarding the execution of the order if these have their origin or cause in acts of the Client, such as the failure to provide complete, correct and clear data or measurements on time or at all.
Except in cases of fraud or willful misconduct, PWL shall in no event be liable for, and shall not be liable to compensate the Client for, any intangible, indirect or consequential damages of any kind, including, but not limited to, loss of profits, loss of sales, loss of income, loss of production or production downtime, administrative or personnel costs, an increase in overhead costs, lost opportunities, loss of clientele or any claims of third parties (including the Client's clients).
In fulfilling the order, PWL is only obliged to perform its obligations under the agreement on a best effort basis. PWL's total liability per claim, except in cases of fraud or willful misconduct, shall in any event be limited to the invoice amount for the defective goods and/or services.
The Client shall fully indemnify PWL against third parties in the event of third-party claims brought as a result of the Client's misuse of the delivered goods or any other claim to which PWL is a stranger.
13. Retention of Title
In the event that materials are supplied in execution of the order, these goods/materials remain the property of PWL until full payment by the Client of the price stated on the relevant invoice. Until full payment has been made, the Client cannot resell the goods or use them as security. Any act contrary to this Article 13 shall not be opposable to PWL.
All costs incurred for the realisation of the goods as well as the costs of recovering them are to be (re)paid by the Client.
14. Force majeure
Force majeure means any act independent of the will of the parties which they could not reasonably have foreseen nor avoided and which makes the performance of their contractual obligations impossible.
Situations assimilated to force majeure which do not allow a party to fulfill its obligations, are: government acts, explosion or civil unrest, telecommunications failures (including "denial of service" attacks and similar unavailability of Internet connections), hacking, a general or partial strike of its personnel or (personnel of) its usual suppliers and transporters, fire, flood, natural disaster, war, terrorism, technical defects in the production line, epidemics, pandemics, road blocks or blockages or a shutdown of power or gas supply, delays in deliveries by PWL's suppliers or any other cause that makes the delivery of the goods impossible and/or prevents the performance of the services.
In such circumstances, one party shall inform the other of the force majeure situation and of the immediate suspension of obligations without a right to compensation.
If the force majeure continues on the part of PWL for a continuous period of six (6) months, the contract shall be terminated, without any right to compensation on the part of the Client.
If PWL has already partially fulfilled its obligations when the force majeure-event occurs, or can only partially fulfill its obligations, PWL is entitled to separately invoice what has already been performed/delivered and the Client is bound to pay this invoice.
In the event of unforeseeable (and unaccountable) changed circumstances that so excessively impede the performance of the agreement that its performance can no longer reasonably be required by the Client (such as but not limited to telecommunication failures, software malfunctions, general or partial strike of usual suppliers and transporters, technical defects, delays in deliveries by PWL’s suppliers, etc.), PWL has the right to request the Client to renegotiate the agreement by registered letter. If the parties have not reached an agreement within a reasonable period of three (3) months, PWL has the right to terminate the contract immediately and without prior notice or judicial intervention.
If one (in whole or in part) or several of the clauses of the present GTC and/or the specific agreement are declared null and void, such nullity shall in no way affect the remaining clauses of the GTC and/or the specific agreement (or the part of the relevant clause that is not invalid or unenforceable), nor the agreement as a whole, and the GTC and/or the specific agreement shall continue to apply with the exception of the void, invalid or unenforceable clause or part of that clause. In such case, the parties will negotiate in good faith to replace the conflicting or unenforceable clause with a legally valid and enforceable clause that is as close as possible to the purpose and intent of the original clause.
The Client may not assign the contract, or any rights or obligations thereunder, in whole or in part, to any third party without PWL's prior written consent.
18. Intellectual Property
All intellectual property rights relating to the goods and/or services as well as the designs, software, documentation and all other materials that are developed and/or used in preparation or performance of the agreement between PWL and the Client or arising out of the agreement, are vested exclusively in PWL. Unless expressly agreed otherwise, PWL retains the copyrights, patent rights, design rights, trademark rights and all other intellectual property rights and remains the exclusive owner of all know-how on the offers made by it, (technical) documents provided, drawings, illustrations, (test) models, techniques and other goods made available to the Client including the drawings/documents provided. The (intellectual) property rights to the aforementioned information and data remain the (exclusive) property of PWL regardless of whether the Client has been charged costs for their production and regardless of any payments made by the Client. The information provided to the Client orally and/or in writing may only be used by the Client for the purpose for which it was provided. All documents that are the subject of PWL's know-how and/or intellectual property rights must be returned to PWL upon its first request and cannot be alienated, copied, used, commercialized or otherwise provided to third parties without PWL's prior written consent.
The Client only acquires a non-exclusive and non-transferable right to use the goods and results of the services for the purposes agreed upon. While using the goods/results of the services, the Client shall strictly adhere to the terms and conditions, laid down in the general terms and conditions or otherwise imposed on the Client.
The Client shall not, without PWL's prior written consent, in any way disclose, duplicate or make available to a third party all or part of the products and results of the services.
The Client shall not remove or alter any indications of PWL or its suppliers regarding copyrights, trademarks, trade names or other intellectual property rights.
The Client further warrants that the information that he/she in turn provides to PWL during the performance of the agreement does not infringe the rights of third parties and indemnifies PWL against any claim by a third party in this regard.
PWL is at all times entitled to refer to the services and training provided as a reference for promotional purposes and competitions using the Client's identity details, unless expressly agreed otherwise.
The Client undertakes to treat all information and documents relating to PWL's commercial activities communicated or coming to its knowledge in the course of negotiations or contracts with PWL, even after the negotiations have ceased, the order has been fulfilled or the contract has been terminated, strictly confidential.
If the Client breaches this confidentiality obligation, it shall be liable to pay liquidated damages of EUR 10,000 per breach, notwithstanding PWL's right to claim higher damages if its actual damage is higher.
20. Privacy and Data Protection.
The Client acknowledges and agrees that PWL receives and processes personal data (name, address, location data, mail address, phone number, etc. of natural persons) from the Client, its employees and/or other data subjects. PWL is the data controller with respect to these personal data.
The personal data collected by PWL will only be used to keep the Client or the data subject informed about his/her order or PWL’s services, as well as any targeted purpose for which the Client or data subject has explicitly consented.
PWL undertakes to process the personal data confidential. Except when necessary for the delivery of the goods/services by the PWL, no personal information will be processed without PWL having obtained the necessary consent form the Client. The Client has the option to withdraw his/her consent at any time.
Within the framework of the execution of the order, it is possible that the Client’s personal data will be passed on to third parties. Insofar as the processing (by these third parties) takes place outside the EEA (European Economic Area) and no adequacy decision by the European Commission is pending, PWL will provide for an adequate level of protection with regard to this personal data by means of model agreements approved by the European Commission (‘standard contractual clauses’) or by means of binding internal codes of conduct (‘binding corporate rules’). PWL undertakes the necessary technical and organizational measures to prevent the loss or any other form of unlawful processing of personal data, taking into account the state of art, the sector concerned, the nature of processing and the associated risks.
The Client has the right to request inspection, correction and/or deletion of his personal data collected, free of charge, as well as the right to withdraw his consent or request transferability. The data collected by PWL for the purpose of processing the order or assignment may be consulted at any time upon written request to PWL (email@example.com/ 3600 Genk, C-Mine 127).
21. Applicable law and competent court
The contractual relationship between PWL and the Client is governed exclusively by Belgian law. The application of the Vienna Sales Convention and the Convention on the Limitations Period in the International Sale of Goods is expressly excluded.
Any dispute between PWL and the Client will be brought exclusively before the courts of the judicial district of Limburg, division Tongeren.