GENERAL TERMS AND CONDITIONS TREEPACK
- APPLICATION
TREEPACK is known as "TREEPACK" BV under the company details as stated in the offers, quotations etc. These general terms and conditions apply to all offers, quotations and all agreements concluded by TREEPACK and all other actions taken by TREEPACK. Special conditions and agreements take precedence over these general terms and conditions of sale. Applicability of any purchasing or other terms and conditions of the client is expressly excluded. All agreements with TREEPACK are concluded in the Dutch language. If they are translated, the Dutch language version and its interpretation shall take precedence over the translation. - OFFERS and ORDERS
The prices used by TREEPACK are always quoted in Euro and are exclusive of VAT and other taxes and duties. TREEPACK is entitled to correct mistakes or errors in the prices quoted. Offers made by TREEPACK are valid for 2 months , unless otherwise indicated. Acceptance of the offer by the client is always binding for the client, but is only binding for TREEPACK after its written confirmation. The Client expressly acknowledges that an order form or contract accepted by him via the internet, e-mail or by fax has the same value as a manually signed copy. A start of execution of the work also constitutes acceptance of the content of the offer. - MAJOR WORK
TREEPACK reserves the right to charge for materials and services that constitute additional work compared to the description in the quotation at the prevailing prices of the materials and TREEPACK's rates applicable at that time. TREEPACK also reserves the right to pass on to the client any price fluctuations in the materials and products used of more than 10% that arise after the quotation has been signed. - PAYMENT
4.1 All invoices are payable within 14 days of the invoice date at TREEPACK's registered office, unless otherwise indicated on the invoice.
4.2 TREEPACK reserves the right to invoice an advance payment at any time.
In the event of failure to pay the advance payment on time, TREEPACK reserves the right not to commence or to suspend the work as long as the advance payment has not been made or has not been made in full, without this giving rise to any right to compensation on the part of the client or termination of the agreement by the client.
4.3 In the absence of proof to the contrary, the invoice is presumed to have been received 5 days after the invoice date.
4.4 All invoices are presumed to have been accepted unless a protest is lodged by registered mail within 8 calendar days of the above-mentioned date of receipt.
4.5 In the event of non-payment on the due date, the outstanding amounts shall automatically and without prior notice be increased by interest at an annual rate of 10% from the invoice date until the date of full payment. They shall also be increased by a fixed compensation of 10% of the outstanding amount, however with a minimum of €100. All additional costs in the event of non-payment, shall be borne by the customer.
- TREEPACK'S OBLIGATIONS
5.1 TREEPACK will perform the works in accordance with the rules of the art, the relevant and applicable laws and regulations, as well as the customs of the sector. This is always an obligation of means on the part of TREEPACK.
5.2 TREEPACK reserves the right to suspend the execution of the works in the event of the unavailability, illness or other absence of the performing artist or to commission another artist to carry out the works, without this giving rise to compensation or the termination of the agreement by the client.
5.3 Deadlines as stated in offers and orders, among others, are not binding on TREEPACK although they will be respected to the best of our ability. Failure to meet them shall not constitute a valid ground for termination, dissolution or suspension of the execution of the agreement by the Client. TREEPACK will inform the Client to the best of its ability of the (probable) exceeding of a stated deadline. - TREEPACK LIABILITY
6.1 TREEPACK will only be liable for deliberate or serious non-performance attributable solely to it.
6.2 TREEPACK's liability will be limited in scope, at TREEPACK's discretion, to the re-performance of the work or the amount of the quotation.
6.3 Consequential or indirect damage such as loss of profits, turnover or other financial or commercial losses may never be recovered from TREEPACK. TREEPACK is also not liable for any damage caused to floors, installations, buildings and the like of which the goods processed by TREEPACK form part.
6.4 Visible defects for which TREEPACK may be held liable are covered by the acceptance of the work.
6.5 If TREEPACK can be held liable for hidden defects, this will be limited as follows:
- Treepack will only be liable for defects exclusively attributable to it and for a maximum period of 2 years after acceptance of the works.
- TREEPACK will not be liable for hidden defects in the materials it uses. This is limited to the liability and guarantee conditions of its suppliers or subcontractors. TREEPACK will under no circumstances be liable for defects of any nature whatsoever in the goods, materials and works supplied by TREEPACK, its subcontractors or appointees, whereby the client may only exercise recourse against its suppliers or the manufacturers of the materials and goods concerned.
6.6 TREEPACK will not be liable for the following:
- Damage resulting from works carried out by the client or any third party, or modifications made by the client or third parties to the works supplied by TREEPACK. Any form of guarantee will thereby lapse.
- The condition and quality of the substrate to be treated by TREEPACK, nor for informing the client of the condition of the substrate. The client is assumed to have carried out the necessary research in this regard, if necessary assisted by an expert.
- Color differences caused by the natural characteristics of the substrate and exposure to weather and other natural forces.
- Any damage to the treated goods resulting from non-compliance with the maintenance and use instructions supplied by the suppliers of the products and materials used by TREEPACK. The client acknowledges that it has been informed of this and has obtained the necessary information in this regard from TREEPACK. The customer acknowledges that this may lead to an additional cost, restoration or reperformance of the work for which TREEPACK reserves the right to invoice additionally at the rates in force at the time. For no reason can a refund or compensation be claimed from TREEPACK in this case. - CLIENT LIABILITY
7.1 The client is liable for providing the correct information on the basis of which TREEPACK has accepted the order. This includes:
- Maximum height of the project
- Total area
- Availability of the required utilities (including electricity, water)
7.2 The Client is liable to the exclusion of TREEPACK for the suitability of the sub-soil on which the work is to be carried out and is presumed to have carried out the necessary research into this.
7.3 The Client undertakes to provide free access at all times to the site where the work will be carried out, at the agreed time and during the execution of the work, on weekdays, weekends and public holidays, during office hours and outside office hours (including at night).
7.4 The Client is liable for damage to the work not attributable to TREEPACK (e.g. fire, storm damage, vandalism, theft, etc.) even if it occurs during the execution of the work. The client is deemed to have taken out the necessary insurance policies to protect the works against such claims.
7.5 It is the client's duty to examine and accept the works on delivery. Acceptance may not be withheld on grounds other than those related to the specifications expressly agreed in writing between the parties and furthermore not on account of the existence of minor deviations with respect to the preliminary design or minor errors, being errors that do not reasonably prevent the operational or productive commissioning of the delivered work, characteristics for which TREEPACK is not liable, or which the client does not immediately demonstrate, or which are not reproducible. The final result will approach the preliminary design as closely as possible. However, the client acknowledges that the preliminary designs are an approximation of the desired final result and the final result may therefore contain deviations from the preliminary design. The customer acknowledges that the execution within the framework of the preliminary design is subject to the artistic freedom of the artist and is susceptible to creative adjustments depending on the site conditions.
7.6 The customer must provide a lockable room for the storage of materials, as well as sanitary facilities. Electricity and running water must be available.
7.7 If the customer is not the owner of the building, he is liable, to the exclusion of Treepack, for obtaining written permission from the owner of the Building to carry out the Project at the agreed location.
7.8 The works will be carried out on the assumption that no urban planning permits or other authorizations are required, or that the customer has applied for these prior to the project. The client is liable for this to the exclusion of TREEPACK. All costs, claims for damages and fines on the part of the customer that would result from the lack of a permit or license under this article shall remain the responsibility of the customer and cannot be recovered from Treepack. Any costs and claims for compensation and fines on the part of Treepack, the Artist or his/her assistants arising from the absence of a permit or license may be recovered in full from the Customer.
7.9 Any complaints regarding visible defects must be formulated no later than the time of acceptance. Any complaints regarding hidden defects relating to TREEPACK's performance must be formulated without delay and at the latest within 14 calendar days of their discovery.
- INTELLECTUAL RIGHTS
8.1 The intellectual rights, including among others trademarks, copyrights, drawing and design rights, patents, concept, formats arising from the works produced by TREEPACK in the context of this Agreement (including designs, sketches, photographs, drawings, plans, models, sketches, models, technical sheets) and all other information provided to the client are and remain the property of TREEPACK and/or third parties (including the authors with whom TREEPACK collaborates).
8.2 Right of use: subject to full payment of the price in application of article 4 of these general terms and conditions, the client acquires a non-exclusive right to display copyright protected works to the public via his or her movable or immovable property as provided by TREEPACK. The customer is also entitled to post pictures of the work via social media, on the understanding that there must always be a reference to the Treepack website as part of the post. Treepack is always entitled to request the removal or modification of certain posts if necessary, or to impose a ban on posting on social media if the circumstances reasonably require this.
The fee for this right of use is included in the price paid.
Unless otherwise agreed, this right of use is valid from the delivery of the works for a period of 10 years, after which the right of use becomes indefinite by operation of law. The right of use may be terminated in accordance with article 11 of these general terms and conditions.
8.3 Any right of use lapses in the event of non-payment or termination/dissolution of the agreement, for whatever reason.
8.4 Among other things, the works may not be reproduced, distributed, commercialised, communicated or disseminated outside the scope of this agreement or without the prior written consent of TREEPACK.
In this regard TREEPACK clarifies that the Client is not permitted to realise income from the use of the work.
8.5 In particular these intellectual rights may not be registered or deposited by the client.
8.6 Copyright notices, brand and or drawing/model indications, serial numbers, deposition or registration numbers and/or other features serving to identify the works and all other information provided to the client and indicating their intellectual right protection may not be removed or modified.
- CONFIDENTIALITY
The client undertakes to keep confidential the confidential information made available to him/her by treepack. Confidential information is in any case understood to mean secrets, know-how, designs, financial and other (business) information (including presentations, quotations and other documentation) provided by TREEPACK which is not publicly available, the personal data of third parties processed by TREEPACK in application of article 14 of the present general terms and conditions and passed on to the customer.
Within the meaning of this article, the content of the agreement between Treepack and the client must also be kept secret from third parties and from the performing artist.
The client undertakes to impose on his/her personnel and/or third parties involved in the execution of an agreement with TREEPACK a written confidentiality obligation of the same scope as this provision.
- NON-CONCURRENCY/ PROHIBITED DISTRIBUTION
10.1 All contacts with the artist are made through Treepack. The Customer undertakes, directly or indirectly through any third party, not to contract directly with the artist except with the express and written consent of Treepack.
10.2 This undertaking is valid for the duration of the contract and continues for a period of 5 years after its termination by either party, for any reason.
10.3 Should the provisions of this article be breached, the Customer shall owe liquidated damages of twenty-five thousand euros, without prejudice to all other rights on the part of Treepack to fulfilment, dissolution or additional damages in accordance with the damage actually suffered.
- TERMINATION - DISSOLUTION - CONSEQUENCES
11.1 Termination of the fixed price assignment entrusted to TREEPACK, whether before or during execution of the works or deliveries, is only possible with the express agreement of TREEPACK in derogation of article 1794 of the Civil Code. The client will in any case be required to pay in full the costs and charges already incurred, any work already carried out, together with the materials and supplies already ordered by TREEPACK, plus a fixed compensation equal to 50% of the outstanding tender amount for the fact of the further loss of the work, subject to increase, if there is reason to do so. For any termination less than 30 days before the start date, the full quotation amount will be due.
11.2 The right to use copyright protected works as stipulated in Article 8 cannot be terminated prematurely by TREEPACK except in the cases provided for in this article. However, the client is entitled to terminate the right of use before the expiry of the final term provided a notice period of 3 months is observed. If the right of use has become indefinite, both parties are entitled to terminate the right of use subject to a notice period of 3 months.
11.3 On termination of the right of use the client must remove the copyright works. Removal is not included in the price charged and will always take place at the expense of the client.
11.4 As long as the right of use has not been terminated in application of this article, the client has under no circumstances the right to modify, remove, encumber, transfer, distribute, commercialize, rent out or otherwise sublicense, publicly reproduce the works, unless otherwise agreed.
11.5 TREEPACK reserves the right to unilaterally terminate/terminate the Agreement at any time with immediate effect, including in the following circumstances:
a. The Client does not comply with one or more obligations arising from this Agreement, of whatever nature, in time or properly, however after written notice of default which has remained without effect for a period of 14 days; In such cases the fees, as the case may be, in article 10.1. will be due in full.
b. in the event of bankruptcy/judicial reorganization/apparent financial insolvency (e.g. following garnishment of third parties) under any form whatsoever or cessation of payment. - WAIVER OF RIGHT
TREEPACK's failure to exercise any right shall in no way constitute a waiver of such right. - FORCE MAJEURE
All situations of force majeure cfr. art. 1148 of the Civil Code discharge TREEPACK from any obligation to fulfill the agreement without being entitled to any form of compensation or possible reimbursement by TREEPACK. This includes: government measures, illness or death of one of TREEPACK's employees, business interruptions due to fire, weather conditions, epidemics, natural phenomena, technical failures, lockout, strike, riot, mobilization, war, defaults or force majeure on the part of subcontractors or suppliers, technical failures, ... If the force majeure situation lasts or threatens to last longer than 3 months, TREEPACK will be entitled by law to terminate the agreement immediately, without prior recourse to a judge and without giving rise to any right to compensation or reimbursement. TREEPACK retains the right to payment for all goods or services already delivered and for costs already incurred with a view to the future execution of the agreement.
The non-fulfillment by TREEPACK of its contractual obligations as a result of force majeure shall not constitute a ground for termination, dissolution or suspension of the execution of the agreement on behalf of the Client.
- PROTECTION OF PERSONAL DATA
Insofar as TREEPACK acts as a data controller with respect to the personal data of the client, it will comply with all applicable laws and regulations relating to personal data to this end. TREEPACK processes personal data for the following purposes: customer and prospect management (contractual necessity, legal obligation and legitimate interest, i.e. freedom of enterprise), execution of the agreement with the customer (contractual necessity), direct marketing (legitimate interest, i.e. freedom of enterprise), compilation and commercialization of static data after its anonymization (legitimate interest, i.e. for comparison on the basis of freedom of enterprise). Data may be transmitted to other entities within TREEPACK for the purposes described above. If necessary for the execution of services or dispute management, personal data may also be passed on to third parties. Personal data will be kept for 10 years after the end of the contractual relationship. The customer has in relation to his data and according to the justification for the processing: the right to access/edit his personal data, as well as erasure or restriction, the right to object, the right to withdraw his consent (if the processing is based solely on this), the right to data portability, the right to lodge a complaint with the Data Protection Authority, the right to oppose the processing of his personal data for direct marketing free of charge. The exercise of these rights is subject to legal conditions and restrictions. The aforementioned privacy terms may be amended from time to time. - NEGLIGENCE
Should one or more provisions in the special and/or general terms and conditions be afflicted with a nullity, this shall not result in the nullity of the entire agreement. The void provision will be brought into compliance with mandatory legislation, for example, when the customer is a consumer within the meaning of Article I.1.2. WHERE. - GOVERNING LAW AND APPLICABLE LAW
Belgian law applies to any agreement between TREEPACK and the other party. Application of international treaties (including the Vienna Sales Convention) is excluded to the extent possible. All disputes relating to this agreement fall within the exclusive jurisdiction of the courts of the judicial district of Antwerp.
