GENERAL TERMS AND CONDITIONS OF FRAX BV
I. General
1.The legal relationship between FRAX BV, having its registered office at Brulens 28C, 2275 Gierle, Belgium, registered with the Crossroads Bank for Enterprises under number 0801.379.158, with email address info@frax.be (hereinafter “FRAX”), and the Customer shall be governed exclusively by the quotation signed by the Customer, of which these General Terms and Conditions form an integral part (hereinafter collectively referred to as the “Agreement”). By entering into the Agreement with FRAX, the Customer declares that it has read and agrees to FRAX’s General Terms and Conditions.
2. FRAX may amend the Agreement. FRAX shall always notify the Customer of any amendments in writing (by letter or email). If the Customer does not wish to accept the amendments to the Agreement, the Customer shall be entitled to terminate the Agreement within a period of 14 calendar days by means of written notice sent to the address (or email address) specified in Article 1 above. If the Customer has not terminated the Agreement in writing no later than 15 calendar days after the date of FRAX’s written notice of amendment, the amended Agreement shall be deemed to have been accepted by the Customer.
3. If special terms and conditions have been agreed between FRAX and the Customer in any other document, such provisions shall be deemed merely supplementary to this Agreement. In the event of any conflict, the Agreement shall in all cases prevail over any conflicting provisions. The Agreement between the Customer and FRAX shall also at all times prevail over any terms and conditions of the Customer that might otherwise apply. By entering into the Agreement, the Customer accepts that the Customer’s terms and conditions are expressly excluded.
4. The Customer’s obligations towards FRAX under the Agreement may not be transferred to third parties without FRAX’s prior express written consent.
5. These General Terms and Conditions shall apply to all FRAX customers, both “undertakings” and “consumers” within the meaning of the Belgian Code of Economic Law, without prejudice to any mandatory statutory provisions applicable, as the case may be, to undertakings or consumers.
II. Offers, quotations, prices, cancellation, duration and invoicing
1. The Customer accepts FRAX’s offer (including the prices and delivery options) for the purchase of goods and/or services by signing FRAX’s quotation. By signing the quotation (i.e. placing an Order), an agreement is concluded between the Customer and FRAX, on the understanding that this Agreement initially gives rise solely to obligations on the part of the Customer.
2. Orders shall be binding on FRAX only after FRAX has confirmed the quotation in writing or has commenced performance of the Agreement (i.e. Order Confirmation). FRAX reserves the right to refuse an Order without being required to state its reasons.
3. Agreements shall always be performed at the prices applicable at the time of the Order and as confirmed in the Order Confirmation. All other prices and delivery options stated in FRAX’s catalogue, printed materials, letters and similar documents shall be non-binding unless expressly included in the Order.
4. Prices are always net, exclusive of VAT and stated in euros. All taxes or government levies of any kind shall be borne by the Customer.
5. Special requests made by the Customer in relation to the Order, including but not limited to the colour of photovoltaic installations, shall not be regarded as essential elements of the Agreement capable of giving rise to compensation and/or termination, unless FRAX has expressly accepted them as essential in writing.
6. The Customer is solely responsible for obtaining any subsidies sought in connection with the goods, services and/or works supplied by FRAX.
7. An Order may be amended only until FRAX issues the Order Confirmation. An amendment communicated after FRAX has issued the Order Confirmation shall be deemed accepted only after FRAX issues a new written Order Confirmation. FRAX’s refusal to accept an amended Order shall under no circumstances entitle the Customer to terminate the original Order. In all cases, all costs arising from an amendment to the Order shall be borne by the Customer.
8. If, after the Order Confirmation and before delivery, FRAX becomes aware of circumstances concerning the Customer, including but not limited to a commercial investigation, a summons relating to tax and/or social-security debts, payment arrears towards other creditors or any other indication of insolvency, which may jeopardise the proper performance of the Agreement, FRAX may, at its discretion, either require advance payment or security before performing the Agreement, or terminate the Agreement without the Customer being entitled to any compensation. FRAX shall notify the Customer of its decision in writing.
9. The Agreement may be cancelled by the Customer only by registered letter sent within 10 calendar days after the date on which the Customer placed the Order or, if performance of the Agreement is scheduled to take place earlier than 10 calendar days after the Order, at least 2 working days before FRAX performs the Agreement, and such cancellation must be accepted by FRAX in writing. In the absence of such written notice sent by registered mail, no cancellation may take place. If the Customer cancels the Agreement, the Customer shall owe FRAX liquidated damages amounting to at least 20% of the value of the Order, in addition to any costs arising from the cancellation, without prejudice to FRAX’s right to prove and claim compensation for its actual loss.
10. If FRAX travels to the Customer in connection with the Agreement (delivery of goods, provision of services, performance of works, etc.) and, for reasons beyond FRAX’s control or attributable to the Customer and/or (unknown) third parties, is required to return without being able to perform the relevant work, the Customer shall be charged a fixed fee of EUR 500, without prejudice to any loss of profit resulting from such unnecessary journey.
III. Delivery, costs and transfer of risk
1. Goods purchased directly from FRAX shall be delivered at the Customer’s risk and expense. If Customers collect their Order themselves, risk shall pass to the Customer as soon as the goods leave FRAX’s warehouse. FRAX shall not be liable for damage or loss during transport. Unless otherwise agreed, FRAX shall determine the type of packaging and method of shipment.
2. If shipment of an Order is delayed due to circumstances for which FRAX is not responsible, risk shall pass to the Customer on the date on which the Customer is informed that the goods are ready for shipment.
3. Delivery shall include only what is specified in the written Order Confirmation. For the purposes of this Agreement, “delivery” shall include the delivery of goods and/or services or the performance of works. All permits, authorisations and obligations imposed by public authorities in connection with delivery shall be for the Customer’s account and sole responsibility.
IV. Payment terms, consequences of non-compliance and set-off
1. Unless otherwise agreed, all FRAX invoices shall be payable immediately upon dispatch or delivery of the invoice or equivalent request for payment, no later than the due date stated on the invoice or, if no due date is stated, no later than 15 calendar days after the invoice date/date of the equivalent request for payment, at FRAX’s registered office, unless otherwise agreed in writing. In the event of late payment, contractual interest at 10% shall be charged automatically and without prior notice of default, with every month commenced being deemed a full month, together with liquidated damages equal to 10% of the invoice amount, subject to a minimum of EUR 120.00. In the event of late payment by the Customer, FRAX shall also be entitled to a fixed reminder fee of EUR 15.00 for each reminder sent.
2. If the Customer fails to pay an invoice on time, all other claims against the Customer that have not yet fallen due shall become immediately due and payable automatically and without prior notice of default.
3. If, for any reason, the Customer fails to pay a FRAX invoice or equivalent request for payment by its due date, FRAX reserves the right to suspend performance of all current or future Orders until all outstanding amounts have been paid in full and correctly, including the liquidated damages, contractual interest and fixed reminder fees described in Article IV.1, without prior notice of default and without the Customer being entitled to claim any compensation on that account.
4. All goods shall remain the property of FRAX until the relevant invoices have been paid in full, together with any applicable interest and costs. If payment is not made on time, FRAX expressly reserves the right to recover the goods that remain its property without prior notice of default. Final acceptance of a system shall take place only once the relevant invoice has been paid in full. If the relevant invoice is not paid, FRAX expressly reserves the right not to carry out the acceptance inspection until payment of that invoice has been made.
5. The Customer may set off FRAX’s claims only against counterclaims that FRAX has acknowledged in writing and that have been legally established.
6. If written special terms allow the Customer to pay outstanding amounts in instalments, failure to pay any one instalment shall cause the Customer automatically and without prior notice of default to forfeit the benefit of payment by instalments, and the entire outstanding amount shall become immediately due and payable, including contractual interest and liquidated damages. The same shall apply in the event of deferment or cessation of payment, amicable or judicial liquidation, bankruptcy or involvement in any insolvency proceedings whatsoever.
7. Any objection to a FRAX invoice must, on pain of forfeiture, be notified to FRAX in writing no later than 8 calendar days after the date of the invoice concerned. Such written objection must, on pain of forfeiture, be sent exclusively by registered mail, must always state the date, number and amount of the invoice concerned, and must set out the grounds for the objection expressly, in detail and exhaustively. In the absence of such timely written objection sent by registered mail, any objections raised by the Customer shall no longer be accepted and the Customer shall likewise be unable to rely on the defence of non-performance.
8. Under no circumstances may the Customer withhold payments in an amount disproportionate to the works and/or repairs still to be carried out.
9. If FRAX has granted the Customer a credit limit, the Customer may place orders and the corresponding goods may be delivered without prior payment, provided that the total outstanding amounts remain within the credit limit granted to the Customer. The credit limit is determined by an external party with whom FRAX cooperates. This external and independent party conducts a thorough assessment of the Customer’s financial position and creditworthiness. FRAX may adjust, reduce or withdraw the credit limit at any time, provided that the Customer is informed accordingly.
The invoice shall be issued to the Customer on the date of delivery of the goods. All invoices relating to orders placed on credit must be paid in full within 7 calendar days from the date of delivery, unless otherwise agreed in writing.
If a new order or delivery causes the granted credit limit to be reached or exceeded, FRAX shall be entitled to suspend the execution and/or delivery of the relevant order and any subsequent orders until the Customer has settled the outstanding amount to such an extent that the total outstanding balance once again falls within the granted credit limit. In such case, FRAX shall not be liable for any damages resulting from the suspension or postponement of the delivery.
Exceeding the credit limit shall not release the Customer from its obligation to pay for goods already delivered and the corresponding invoices within the agreed payment term of 7 calendar days. In the event of late payment, the provisions of Article IV.1 of these General Terms and Conditions shall apply in full.
A credit limit granted by FRAX shall not constitute an acquired right or entitlement to future deliveries on credit. FRAX reserves the right to refuse further deliveries on credit or to withdraw the credit limit, in whole or in part, if the Customer’s payment history, financial situation or creditworthiness gives reasonable grounds to do so.
V. Delivery periods, returns and related liability provisions
1. The delivery period shall commence once all details concerning performance of the Agreement have been clarified. Acceptance of delivery and payment of invoices to FRAX shall in each case imply that the Customer has acquired such knowledge of and agreed to the Agreement.
2. Compliance with the delivery period is conditional upon the Customer fulfilling its contractual obligations, in particular those relating to the agreed price and payment terms.
3. Delivery times communicated in good faith are estimates only and may differ from actual delivery times. FRAX undertakes to take all reasonable measures to deliver the ordered goods and/or services and/or works on time; however, this obligation is an obligation of means only.
4. FRAX reserves the right to make partial deliveries.
5. A delay in delivery for reasons beyond FRAX’s control shall under no circumstances give rise to cancellation of the Order, compensation of any kind, or refusal of the goods and/or services and/or works upon delivery.
6. Circumstances that may endanger the safety of FRAX’s employees, subcontractors or contractors, including but not limited to adverse weather conditions in the case of roofing works, shall automatically result in delivery being postponed, even if delivery has already commenced, without any compensation being due to the Customer.
7. If delivery is not made on time for reasons for which FRAX is directly responsible, and FRAX confirms in writing that, at the Customer’s request, it agrees not to proceed with delivery, the Customer shall be entitled only to reimbursement of the price already paid for the undelivered goods and/or services and/or works, without interest or any other compensation whatsoever. Unless delivery of the entire Order is cancelled, all administrative and logistical costs already incurred shall remain payable.
8. If, for any reason, the Customer refuses delivery of correctly delivered and undamaged goods and/or services and/or works, FRAX may refuse further performance of the Agreement. In that event, the Customer shall owe liquidated damages amounting to at least 30% of the value of the correctly delivered and undamaged but unaccepted goods and/or services and/or works, in addition to any costs arising from the cancellation, without prejudice to FRAX’s right to prove and claim compensation for its actual loss.
9. Goods may be returned or Orders cancelled only with FRAX’s prior written consent. FRAX’s consent to a return shall under no circumstances constitute an admission of liability or wrongdoing.
10. For every return of goods or cancellation of an Order within the meaning of Article V.9 of these General Terms and Conditions, at least 10% of the net value of the goods shall be deducted from the credit note as an administrative fee. All costs arising from the return or cancellation shall be borne by the Customer.
V.9. van deze algemene voorwaarden wordt van de creditnota minstens 10% van de nettowaarde van de goederen afgehouden voor administratiekosten. Alle kosten ten gevolge van de terugzending of annulering zijn ten laste van de klant.
11. FRAX shall be entitled to invoke force majeure where the circumstance preventing the continued performance of the Agreement is beyond FRAX’s control. During a force majeure event, FRAX’s delivery and other obligations shall be suspended. If the period during which FRAX is unable to perform its obligations due to force majeure exceeds four (4) weeks, either party shall be entitled to terminate the Agreement without court intervention and without the other party being entitled to compensation.
VI. Complaints and liability provisions
1. Upon delivery, the Customer shall sign the delivery note to acknowledge receipt. Any visible damage and/or defects must be recorded on the delivery note. No subsequent complaints concerning such damage or defects shall be accepted. By signing the delivery note, the Customer confirms that it has received the goods, services and/or works in the agreed condition.
2. Complaints concerning the delivered goods and/or services and/or works must, on pain of forfeiture, be submitted by the Customer to FRAX exclusively by registered letter no later than 10 working days after receipt of the goods and/or services and/or works. The letter must contain a clear, detailed and exhaustive list of the defects. Use of any part of the delivery shall constitute full acceptance of the delivery.
3. Complaints concerning latent defects must, on pain of forfeiture, be notified to FRAX exclusively by registered letter no later than 10 working days after discovery. The letter must contain a clear, detailed and exhaustive list of the alleged defects.
4. Complaints concerning a lack of conformity of the delivered goods must, on pain of forfeiture, be submitted by a Customer who is a consumer to FRAX exclusively by registered letter no later than 2 months after the lack of conformity of the goods was established. The letter must contain a clear, detailed and exhaustive list of the defects. Use of any part of the delivery shall constitute full acceptance of the delivery.
5. FRAX shall not be held liable for either visible or latent defects if the time limits referred to above in Articles VII.2, VII.3 and VII.4 have expired without FRAX having received the registered letters containing a clear, detailed and exhaustive description of the alleged defects.
6. Complaints shall be considered only after the price has been paid in full, including the part to which the complaint relates. The Customer’s reliance on the defence of non-performance is expressly excluded.
7. In the case of localised and/or partial works and/or repairs in an existing home, construction site or installation, FRAX may be held liable only for errors or defects in works and/or repairs that the Agreement concluded for that purpose, or at least another express written acknowledgement, establishes were performed by FRAX.
8. Damage to walls, floors, goods or installations that is necessary for performance of the Agreement, including but not limited to the removal or repair of old pipes, may never be claimed from FRAX unless FRAX accepted such liability in writing before performance of the Agreement.
9. If a complaint is well-founded, the delivered goods and/or services and/or works shall, at FRAX’s discretion, be repaired or replaced free of charge, without FRAX being liable for any additional compensation of any kind.
10. FRAX may be held liable only insofar as the Customer proves that FRAX committed gross negligence or a serious fault, acted intentionally, or failed to perform an obligation constituting one of the principal obligations under the Agreement. FRAX’s liability shall be limited to compensation for foreseeable, direct and personal loss actually and demonstrably suffered by the Customer, to the exclusion of all indirect or non-material loss, including but not limited to loss of turnover, loss of income or profits, loss of customers, loss of or damage to data, loss of contracts and additional costs. In all cases, FRAX’s liability shall be limited to the amount covered by the insurance taken out for that purpose.
11. FRAX shall not be liable for any damage arising from the Customer’s failure to comply with the Agreement, nor shall FRAX be liable for damage caused directly or indirectly by an act of the Customer or a third party, whether caused by fault or negligence.
12. FRAX shall not be liable for defects in goods supplied by it that fall within the manufacturer’s responsibility pursuant to the Belgian Act of 25 February 1991 on liability for defective products. The Customer must bring any claim relating to such defects directly against the manufacturer.
13. Apart from the remedies set out above in the event of delay or defects, FRAX may not be held liable unless the damage results from wilful misconduct or gross negligence by FRAX and/or by FRAX’s legal representative or agent expressly recognised by FRAX as such.
14. By accepting the Agreement as described in Article I.1, the Customer expressly confirms that it has received and understood the instructions for the maintenance and, where applicable, installation and use of all goods and/or works supplied.
15. The Customer acknowledges that the proper functioning of certain features (such as cloud-based control) depends on a stable, continuous and separate internet connection, for which the Customer is responsible. We recommend setting up a separate internet network for the battery system and solar panels in order to prevent access to the Customer’s network. The Customer must at all times provide a sufficiently stable foundation for the total weight of the system. FRAX shall under no circumstances be liable for loss of efficiency caused by defects in the Customer’s internet connection or other disruptions such as software updates, etc.
16. The customer is responsible for correctly determining, verifying, and timely providing all technical data and parameters relating to the acces capacity, injection capacity, consumption capacity and/or any other applicable power limits of the installation at the end customer's premises. Frax is under no obligation to independently check or verify such data with the end customer, grid operator, or any other third party.
Consequently, Frax cannot be held liable for any exeedance of the acces capacity or any other applicable power limits.
VII. Warranty
1. The warranty provided by FRAX is granted exclusively to Customers who qualify as “consumers” (and not as “undertakings”) within the meaning of the Belgian Code of Economic Law. This warranty is limited to the statutory warranty laid down in Section IV, Articles 1649bis to 1649octies (Provisions relating to consumer sales) of the Belgian Civil Code, except where a separate maintenance agreement applies, in which case it shall apply for the duration of that agreement.
2. FRAX’s warranty obligations may be invoked only by registered letter expressly setting out the grounds for invoking the warranty in detail and exhaustively.
3. Without prejudice to statutory warranty rights, any additional warranty provided by FRAX shall lapse if the Customer and/or a third party, whether or not acting on the Customer’s instructions, has carried out work on the goods supplied and/or installed by FRAX and/or on works performed by FRAX.
4. All obligations arising from FRAX’s statutory and/or contractual warranties shall be performed within a reasonable period after receipt of the registered letter described in Article VII.2 of these General Terms and Conditions. Under no circumstances shall the Customer be entitled to compensation or termination on the grounds of an alleged delay in FRAX’s performance of its warranty obligations.
IX. Entire agreement, severability, competent court and applicable law
1. This Agreement constitutes the entire agreement between the Parties and supersedes all prior written and oral agreements and arrangements relating to its subject matter.
2. The possible invalidity of any provision of the Agreement shall not result in termination of the Agreement as a whole. If any provision is invalid, the Parties shall, to the extent possible and acting loyally and in good faith, negotiate to replace the invalid provision with an equivalent provision consistent with the general spirit of the Agreement.
This Agreement shall be governed by Belgian law. All disputes arising out of or in connection with this Agreement shall fall within the exclusive jurisdiction of the courts of Antwerp, Turnhout division. In particular, the Justice of the Peace Court of the canton of Hoogstraten shall have jurisdiction over all matters falling within the jurisdiction of a Justice of the Peace. The application of the 1980 United Nations Convention on Contracts for the International Sale of Goods (Vienna Sales Convention) is excluded.
X. SPECIAL PROVISIONS
1. These special provisions shall apply only to Customers for whom the goods or services supplied are unrelated to the operation of an undertaking or the pursuit of any self-employed activity.
2. Article V, paragraph 3 is replaced by the following text: “FRAX BV undertakes to perform the Agreement within a reasonable period, taking account of the specific circumstances.”
3. Article 5 is supplemented by the following text: “If FRAX fails to comply with its obligations, the Customer shall be entitled to compensation in accordance with the rules of ordinary law. The Customer shall also be entitled to seek termination of the Agreement.”
4. The Agreement shall be supplemented by an Article entitled “VIII. Data processing”, which shall read as follows:
“1. The Customer agrees that the personal data provided by him/her may be used by FRAX for information or promotional campaigns relating to the goods and/or services and/or works offered by FRAX within the contractual relationship between FRAX and the Customer. The Customer may at any time request, free of charge, the deletion, disclosure and/or correction of his/her data.
To the extent that FRAX processes personal data, such personal data shall be processed fairly and carefully and in accordance with the General Data Protection Regulation. FRAX shall take technical and organisational measures to protect personal data against loss or any other form of unlawful processing, taking into account the state of the art and the nature of the processing.”
Voor zover er persoonsgegevens door FRAX worden verwerkt, zullen deze persoonsgegevens op een behoorlijke en zorgvuldige wijze worden verwerkt en overeenkomstig de Algemene Verordening Gegevensbescherming. FRAX zal technische en organisatorische treffen om de persoonsgegevens te beschermen tegen verlies of enige andere vorm van onrechtmatige verwerking, daarbij rekening houdend met de stand van de techniek en de aard van de verwerking.”