Terms and Conditions

These general terms and conditions regulate the supply of goods and services by NESTAAN NV to its Belgian and foreign customers. NESTAAN SA (hereinafter "NESTAAN") is a company with its registered office at Leuzestraat, 101, 8510 Bellegem, Belgium, registered with the BCE (Belgian Companies Register) under number BE 0477.157.153. 

 Article 1 - Purpose

1.1. These general terms and conditions define, without prejudice to the application of the special terms and conditions, the respective obligations of NESTAAN and its customers in the context of the supply of goods and services by NESTAAN. These general terms and conditions are applicable to all offers, contracts or orders addressed to NESTAAN. All deviations from and amendments to these general terms and conditions require the prior written consent of NESTAAN. 
1.2. By signing the order form or the offer of goods or services from NESTAAN, or by accepting the order confirmation sent by NESTAAN, the customer expressly acknowledges that they have read these general terms and conditions and accept them without reservation. 
1.3. NESTAAN reserves the right to change its general terms and conditions at any time, with the new general terms and conditions applying to any offer, contract or order made after the effective date of such a change.
1.4. In the case of any contradictions between NESTAAN’s general terms and conditions and those of its customers, it is agreed that these general terms and conditions shall prevail. If this is not the case, the provisions which are not expressly deviated from shall remain applicable by way of exception, if they have been accepted by NESTAAN.

Article 2 - Offer validity

2.1. Unless otherwise agreed in writing, NESTAAN's offers shall be valid for 30 calendar days from the date of issue. 
2.2 NESTAAN and the customer are only contractually bound from the moment that 1) the customer has signed the offer or the purchase order, 2) or the parties have signed a contract for the supply of goods or services within the period referred to in article 2.1; 3) or NESTAAN has accepted the order and encoded it in its ERP purchase management tool. Any order that is sent to NESTAAN without having been preceded by a written offer from NESTAAN shall only be considered valid after written confirmation and the signature of a valid offer or order form issued by NESTAAN, unless otherwise agreed.
2.3. Only the characteristics of the products and services described in NESTAAN's offer are binding. Any mention or image published on the www.nestaan.be website or in its commercial publications is indicative. NESTAAN declines all responsibility in the event that the characteristics of the products or services supplied by NESTAAN differ from the characteristics described on the aforementioned site or documentation.

Article 3 - Orders

3.1. No product or service shall be supplied by NESTAAN unless an order confirmation and/or order form and/or signed offer has been returned to NESTAAN in accordance with article 2.2 and any advance payment requested by NESTAAN has been paid. The latter formalities imply acceptance of these terms and conditions.
3.2. Changes made by the customer to the order form or offer issued by NESTAAN shall only be valid if accepted and confirmed by NESTAAN in writing.
3.3. In the event of unilateral cancellation of an order by the customer, NESTAAN reserves the right to demand compensation for damages equal to ten (10) percent of the total amount of the order. 
3.4. Unless otherwise agreed in advance and in writing by NESTAAN, any offer or order form signed by the customer shall be deemed to be concluded in their name and on their behalf and shall be invoiced to them in their name and on their behalf. Unless there is an express mention of invoicing in the name and on behalf of a third party on the order confirmation issued by NESTAAN, NESTAAN shall in no case be obliged to invoice a third party.
Similarly, NESTAAN's representatives do not have the power of representation. Any conditions or agreements negotiated by them shall only become binding after NESTAAN has sent a written acceptance of the order.

Article 4 - Deadlines

4.1. The deadlines for services or deliveries by NESTAAN shall be agreed between NESTAAN and the customer in the order form. Otherwise, they are indicative.   
4.2. Delays incurred by NESTAAN cannot, under any circumstances, justify the cancellation of the order, the termination of the contract or a claim for damages.
4.3. If a deadline is imperative, it must be clearly specified as such on the order form. In this case only, if the delivery is delayed by more than forty-five (45) days, the customer may claim compensation, which may not exceed three (3) percent of the total price of the order, provided that the delay is not in whole or in part attributable to the customer and/or any third party working on the site on their behalf.
4.4. In all cases, even if there is an imperative deadline, the following circumstances release NESTAAN from compliance with the deadlines set for services and/or deliveries: Force majeure (including, in particular, strikes, epidemics, cyber-attacks, technical incidents, 
supplier delays and labour shortages) or third party events; Non-compliance with payment terms; Changes to orders made by the customer during production; Failure by the customer to provide information requested by NESTAAN to carry out the services and/or deliveries within the specified period.

Article 5 - Method of execution and acceptance 
5.1. The customer commits to provide NESTAAN with all documents necessary and useful for the execution of the order, such as specifications, technical drawings, etc. In addition, they commit to give free necessary and useful access to any infrastructure to which NESTAAN's employees and subcontractors should have access for the execution of this contract.
5.2. If a delivery date is agreed with the customer or any third party acting on their behalf, the customer may not change the delivery date without NESTAAN’s prior agreement.
5.3. The goods and services supplied by NESTAAN shall be deemed, unless otherwise agreed, to have been accepted and approved by the customer if the customer has not made any written comments on their conformity by registered letter within 48 hours of delivery to the place agreed when the order was confirmed by NESTAAN, in accordance with article 5.5.   
For technical reasons and due to the nature of the products, the customer acknowledges that they have been informed and agree that certain variations in size, weight and/or colour may occur and cannot reasonably be avoided.  NESTAAN reserves the right to deliver the planned quantities with a margin of plus or minus 10%; in this case, it is agreed that NESTAAN shall be entitled to invoice the quantities actually delivered; furthermore, the aforementioned tolerances shall in no way engage NESTAAN's liability for failure to comply with its contractual obligations; the customer exonerates NESTAAN from any liability in this regard. 
5.4. If the customer fails to accept the delivery of the goods at the time of delivery, NESTAAN reserves the right to demand the execution of the contract, without prejudice to possible damages, or to consider it terminated by operation of law, without the need for legal proceedings. In this case, the customer shall owe NESTAAN, within 8 days of the notification of this cancellation, a fixed compensation of 50 percent of the agreed price for breach of contract, without NESTAAN having to justify this amount, and without prejudice to NESTAAN's right to claim compensation for the full amount of its loss if this should prove to be greater.5.5. It is agreed that, unless otherwise agreed by the parties, the transfer of risk in respect of the products sold by NESTAAN shall take place upon delivery thereof in accordance with the terms and conditions agreed in the purchase order, if any, by reference to the mutually agreed Incoterm 2020 (EXW, FOB, CIF, DDP).  

Article 6 - Price 

6.1. The prices indicated are in Euros, unless NESTAAN has agreed on another currency when ordering.
6.2. The current prices are expressed without VAT. Once the order has been confirmed or the contract concluded, NESTAAN's prices are, in principle, not subject to revision. However, NESTAAN reserves the right to index its prices on the basis of the reference index of producer prices in the construction sector on the basis of the following formula:P2 = (0.2 x P1) + (P1 x i2 / i0], 
In which:P2 = indexed price;P1 = applicable price before indexation;i0 = index of the month preceding the month of the effective date of the general terms and conditions (construction sector);i2 = index of the month before indexation.
6.3. The prices mentioned in NESTAAN’s price lists are purely indicative and not binding to NESTAAN. Only the final price mentioned in the offer or the order form or the invoice is valid. 
6.4. The prices fixed for the services are established in consideration of standard work, not subject to any interruption or modification by the client. In the latter case, the price may change.
6.5. Unless otherwise agreed, the agreed prices do not include transport costs. If NESTAAN was notresponsible for the transport or its organisation, the customer is obliged to organise and carry out the transport(s) at their own expense and responsibility.

Article 7 - Terms of payment

7.1. Unless otherwise agreed in writing in the order confirmation, NESTAAN's invoices are payable either directly and without discount or within 30 days in accordance with the law of 2 August 2002 concerning the prevention of late payment in commercial transactions. The customer is obliged to pay for all orders in accordance with the terms and conditions set out in the invoice issued by NESTAAN.
7.2. NESTAAN is entitled to demand payment of a deposit from the customer, which is a condition for the supply of goods and services by NESTAAN in accordance with article 3.1. Likewise, NESTAAN reserves the right to demand personal or real securities from the customer in order to guarantee the proper execution of its contractual obligations.
7.3. NESTAAN remains the full and complete owner of the products sold until full payment of the agreed price, without prejudice to the transfer of risks referred to in Article 5.5. 
In the event of non-payment of all or part of the amounts due to NESTAAN, the customer authorises NESTAAN to recover the products sold in any place and wherever they may be found and to retain any deposit received. This clause shall remain in full force and effect in the event that the products have been resold by the customer to a third party. Furthermore, the customer agrees to transfer any claim that the customer may have against its own customer to NESTAAN, without prejudice to NESTAAN's right to recover from the customer: the costs of recovery, including transport costs, and compensation for any damage to the products, after deduction, where appropriate, of the amount of any deposit received by NESTAAN. 
7.4. In the event of non-compliance by the customer with one of their obligations and in particular in the event of non-payment of an instalment for any reason whatsoever, NESTAAN reserves the right to suspend the execution of the contract by operation of law, without notice of default or compensation, and consequently the supply of the agreed goods and services.
The same shall apply in the event that the customer's solvency is threatened, without prejudice to NESTAAN's right to demand personal or real securities from the customer in order to guarantee the proper execution of the customer's obligations to NESTAAN, even if the order has already been shipped by NESTAAN.
7.5. Any invoice that is not contested by registered letter within 8 days of being sent shall be considered accepted by the customer.
7.6. Any request by the customer for a modification of the work carried out or for an additional order to the work carried out does not authorise the customer to suspend payment for the work completed.

Article 8 - Interest for late payment, penalty clause and costs 

8.1. Any invoice that is not paid on the due date shall, by operation of law and without prior notice of default, bear conventional interest on arrears of 1.5 percent per month started, with a minimum rate in accordance with Article 5 of the Act of 2 August 2002 on late payment in commercial transactions.
8.2. In addition, any invoice that remains unpaid on the due date shall be increased, by operation of law and without notice of default, by a conventional, fixed and irreducible indemnity of 15% of the amount remaining unpaid, with a minimum of one hundred euros (€100) per unpaid invoice.
8.3. Furthermore, in the event of non-payment of invoices that are due, the sums due will be increased by €12.50 as an administrative charge per reminder sent.
8.4. If proceedings are instituted as a result of a contractual fault on the part of the customer, which includes the non-payment of an invoice on the due date, NESTAAN reserves the right to claim the defence costs (lawyer's fees, expert's fees, etc.) incurred (which form an integral part of its damage), without prejudice to the application of the contractual indemnity set out above.
8.5. Failure to pay an invoice on the due date shall render all sums due immediately payable, regardless of any payment facilities previously granted.
8.6. NESTAAN furthermore reserves the right to claim any costs incurred from the customer as a result of the delay in delivery attributable to the customer or a third party acting on their behalf, such as storage costs for the products sold (without prejudice to NESTAAN's right to demand advance payment of 50 percent of the invoice for the balance of the order).

Article 9 - Complaints

9.1. Any complaint and/or dispute by a private or professional customer with regard to the service and/or product supplied must be formulated, on penalty of nullity, by registered letter within the period referred to in Article 5.3. 
9.2. Any complaint relating to an invoice must, on penalty of nullity, be sent to NESTAAN by registered letter within the period referred to in article 7.5.
9.3. The lodging of a complaint does not in any way relieve the customer of their payment obligations.

Article 10 - Guarantee 

10.1. The products and services provided by NESTAAN shall be deemed to have been approved by the customer within the period set out in article 5.3, unless the customer notifies NESTAAN of a specific and detailed complaint before the expiry of this period by registered letter.
10.2. The approval of the products or services shall cover all apparent defects and lack of conformity, i.e. all those which the customer could have detected at the time of delivery or within the period set out in Article 5.3.
10.3. NESTAAN guarantees the services and products supplied against hidden defects for a period of six (6) months from delivery. This guarantee is subject to the following conditions. To be able to benefit from the guarantee, the customer must establish that the defect was present prior to the sale and notify NESTAAN of any complaint relating to hidden defects by registered letter as soon as it appears and, at the latest, within 30 calendar days of discovering the defect. In addition, the defect must render the service or product unfit for its intended use.
10.4. In all cases, NESTAAN is only obliged to provide an equivalent and compliant service or to replace the non-compliant product, to the exclusion of any compensation for any reason whatsoever, and in particular for costs caused by the replacement, any losses, prejudice and loss of profit relating thereto. Under no circumstances will the services provided and/or the products delivered be refunded.

Article 11 - Responsibilities
11.1. NESTAAN does not assume any liability other than that provided for in Articles 10.1 to 10.5, and this within the limits referred to in these Articles.
NESTAAN is not be liable for - and shall not be liable for - any advice, instructions or booklet for its products and services that are provided to the customer by a third party.
11.2. Except in the case of gross negligence or wilful misconduct, NESTAAN also declines all liability, both towards its customers and towards third parties, in the event of direct damage to property or persons resulting from the use of the services and products provided by NESTAAN, including loss of earnings or any other loss resulting directly or indirectly from a defect in the service or product provided. In any case, NESTAAN's liability is limited to the amount of the order or the offer of services; NESTAAN's liability for indirect damage is excluded.
11.3. The customer shall indemnify NESTAAN against the consequences of any claims resulting from the third party's calling into question the customer's or NESTAAN's responsibility for the use of NESTAAN's products or services by the third party.

Article 12 - Force majeure 

12.1. Circumstances such as a strike, cyber-attack, fire, epidemic, delays of suppliers, war, bankruptcy of suppliers, operating disturbances, material defects, transport difficulties, riots, prohibition or restrictions on exports, as well as all administrative or judicial measures affecting the production or marketing of the products and, more generally, any fact beyond the control of NESTAAN of such a nature as to prevent or delay the execution of the contract, are to be considered as cases of force majeure. In such cases, NESTAAN shall not have to establish the unpredictability or unavoidability of the circumstances or the impossibility of executing the contract.
12.2. NESTAAN shall inform the customer of the disruptive event as soon as possible.
12.3. NESTAAN reserves the right to extend any agreed delivery or execution period by a period equal to the period during which the force majeure lasted. Furthermore, if these facts jeopardise the execution of the order in accordance with the terms and conditions, NESTAAN reserves the right to terminate the contract without compensation.
Article 13 - Termination - Termination to the detriment of the Customer
The foregoing provisions do not contain any waiver of NESTAAN's right to demand, in the event of non-payment or non-compliance by its co-contractor with its contractual obligations (or of a serious risk of non-compliance with its obligations), the cancellation or termination of the agreement, by operation of law, with damages and interests. This complaint shall be submitted by registered letter addressed to the customer from NESTAAN.  Such termination may take place even before the obligations are due.

Article 14 - Miscellaneous provisions

14.1. NESTAAN remains the full owner of the intellectual property rights, of whatever nature, relating to the goods and services it provides, including the documentation and more generally any deliverable or product that NESTAAN provides to the customer as part of the execution of the customer's order. The same applies to NESTAAN's rights to its trademark or to the name of the services it provides.  No right of reproduction or communication of these is authorised without the prior consent of NESTAAN; the use of these is strictly limited to the services provided by NESTAAN. 
14.2. The possible nullity of one of the clauses of these general terms and conditions does not entail the total nullity of the general terms and conditions.
14.3 Where NESTAAN's services involve the processing of the customer's personal data, NESTAAN shall do so in accordance with the General Data Protection Regulation of 26 April 2016 and the Act of 30 July 2018 on the protection of individuals and the processing of personal data. Where processing concerns the personal data of third parties, the customer shall ensure that such processing carried out by NESTAAN is in accordance with the applicable law and, insofar as necessary, with the prior consent of the person concerned.
The customer may, at any time, ask NESTAAN any questions relating to the protection of personal data by contacting NESTAAN at the address mentioned in the preamble of these general terms and conditions. 

Article 15 - Applicable law and jurisdiction

15.1. The general terms and conditions are subject to Belgian law. 
15.2. Any dispute relating to their formation, interpretation or execution shall be submitted exclusively to the Commercial Court of Ghent, Kortrijk division.