General terms and conditions of sale

Cooperation with Touching Floors shall be governed by Touching Floors’ General Terms and Conditions of Sale, and this order. Please read these General Terms and Conditions carefully since by placing your order, you agree, among other things, that delivery times are indicative, the risk is transferred at the time of the order, the guarantee period runs from the time of delivery, a specific complaints procedure applies, liability is limited or excluded, and that the Enterprise Court of Tongeren has exclusive jurisdiction in the event of disputes.

Legal relationship

These General Terms and Conditions of Sale (hereinafter referred to as the ‘Conditions’) shall apply to every order and associated sale by Cybelle Sense of Living BV, with its registered office at 3600 Genk, Neerzijstraat 13F Box 2 and registered with the CBE under number 0807.775.418 (hereinafter referred to as ‘Touching Floors’).
A regular and lawful order (whether placed by letter, email, and even by telephone) shall be deemed to exist only if the order has been accepted in writing by Touching Floors (hereinafter referred to as the ‘Order’).
Placing an Order irrevocably and without reservation implies that, at that moment, the Customer (i) acknowledges having been fully informed of all the characteristics and specifications peculiar to the product concerned, and (ii) acknowledges having read, understood, and accepted these Conditions.
Unless expressly agreed otherwise in writing between Touching Floors and the Customer, these Conditions and the Order shall exclusively govern the contractual relationship between Touching Floors and the Customer (hereinafter referred to as the ‘Contract’), subject to the following hierarchy (in order of importance): the Order, followed by the Conditions.
The Contract shall come into existence from the moment the Order is placed.
Touching Floors nevertheless reserves the right to refuse an Order in case the stocks of a particular product are exhausted.
In case the Customer cancels the Contract prior to the scheduled delivery date, the Customer shall owe liquidated damages amounting to 60% of the value of the Order, subject to a minimum of €500, if such cancellation occurs more than four (4) weeks prior to the scheduled delivery date, and amounting to 100% of the value of the Order if such cancellation occurs less than four (4) weeks prior to the scheduled delivery date, in each case, without prejudice to Touching Floors’ right to prove and claim higher damages.
If objective grounds indicating insolvency or liquidation exist, both Touching Floors and the Customer shall have the right to seek financial guarantees from the other party, or to terminate the Contract with immediate effect by means of a written notice to the other party.

Indicative delivery periods

Touching Floors undertakes to take all the care that a prudent and reasonable person would have taken, to meet an agreed delivery date, and is hereby only bound by a best efforts obligation (‘acting to the best of its ability’).
There is no guarantee of timely and complete delivery, since delivery periods may be subject to unforeseeable and non-attributable circumstances.
The Customer expressly confirms that the delivery period is not an essential provision of the Contract.
Delay in delivery or performance can never give rise to any penalty, claim for damages or termination of the Contract.
At each stage of the execution, the Customer shall provide Touching Floors with all information that Touching Floors deems necessary and useful for the performance of the Contract in good time, failing which Touching Floors shall have the right to suspend the delivery.
Touching Floors reserves the right to suspend performance if all prior and overdue invoices are not paid in full.

Retention of title, transfer of risk

Touching Floors retains ownership of the products until the time of full payment of the principal amount and, where applicable, any accrued interest and damages.
Products must be kept in their original packaging for identification purposes until full payment is made.
In case of non-payment, Touching Floors shall be entitled to take back the unpaid products without notice or judicial intervention.
Conversely, the risk relating to the products (including, but not limited to, the risk of loss, theft, fire and destruction or damage) shall pass at the time of the Order.

Price and payment

The prices charged shall be exclusive of VAT and other costs (e.g. shipping and transport costs) or statutory contributions/surcharges.
Touching Floors reserves the right to refuse the Order in case of a manifest error in the indicated price, and the Customer shall have the option of accepting the new price or cancelling the Order free of charge.

Invoicing conditions

Unless expressly agreed otherwise in writing between Touching Floors and the Customer in the Order, each invoice shall be due no later than fifteen (15) calendar days.
Invoices shall only be sent electronically (via email) with the Customer’s consent.
If the Customer fails to pay an invoice or fails to pay it in full by the due date, the outstanding amount shall – ipso jure and without the need for a prior reminder – (i) be increased by a fixed and irreducible indemnity equal to 10% of the amount due, subject to a minimum of €500, and (ii) be increased together with default interest equal to the statutory interest rate as laid down in the Act of 2 August 2002 on combating late payment in commercial transactions.
In the event of a dispute, the Customer shall protest an invoice of Touching Floors in writing stating the reasons, and, no later than eight (8) calendar days after receipt thereof, failing which the protest shall be deemed non-existent.
If the agreed payment terms are not met, all outstanding invoices shall become immediately due and payable, and Touching Floors shall have the right, without any notice of default or judicial intervention, to suspend further performance or to dissolve the Contract by giving notice to the Customer, without prejudice to the right to claim damages.

Guarantee

Touching Floors guarantees that the products sold by it are in accordance with the description, quantity and quality provided in the Order. No other guarantees are provided, except for applicable and non-excludable statutory guarantees.

Complaint procedure

Any complaint regarding the performance of the Contract by Touching Floors must, on pain of forfeiture of rights, be notified in writing with a detailed and substantiated statement of reasons and supporting photographs within eight (8) calendar days after the alleged shortcoming or negligence was discovered or could reasonably have been discovered, but in any event before any use, alteration or repair takes place.
A possible complaint or dispute shall not constitute a ground to withhold payment; immediate payment of overdue amounts if any, may be demanded.
In the event of complaints, the Customer shall, on pain of forfeiture of any rights, enable Touching Floors to conduct a proper investigation, which means that the allegedly defective product shall be returned (except in the event of damage) in a normal condition.
Subject to statutory obligations, Touching Floors will not take back products whose nature, characteristics or functioning have been compromised by the Customer or by third parties. This will be assessed by Touching Floors upon receipt of the return shipment.
In the event that the complaint is deemed unfounded, the allegedly defective product will be made available for on-site collection at the Touching Floors’ warehouse located at 3600 Genk, Woudstraat 31, and the cost of the investigation carried out may be charged to the Customer depending on the grounds for rejection. This shall apply, for example, if the inspection revealed that the cause of the complaint was due to an incorrect setting.
A legal claim relating to a defect rendering a sale void or a lack of conformity must be instituted at the latest within two months of discovery of the defect, under penalty of forfeiture of any right.

Limitation/exoneration of contractual liability

Upon acceptance of the delivery, the products are irrefutably presumed to have been delivered in conformity, and Touching Floors can no longer be held liable for visible defects.
If a complaint is well-founded because Touching Floors can be held accountable for an attributable shortcoming or act of negligence within the context of the Contract, Touching Floors shall have the option to replace the defective product or to pay appropriate compensation for the same.
In the event of replacement, Touching Floors shall supply a new similar product. Touching Floors shall not cover installation costs or any other potential costs or damages that may be associated with the replacement, and cannot be held liable for the same.
In case of payment of appropriate compensation, the compensation shall amount to the value of the defective product.
In any event, the compensation for which Touching Floors may be held liable shall not exceed sixty (60)% of the Order, or a maximum of €25,000, whichever is lower, irrespective of the cause, nature or subject matter of the claim. The parties accept this ceiling as reasonable, given the nature, extent and foreseeability of the damage.
Pursuant to a limitation of liability clause within the meaning of Section 5.89 of the Civil Code, Touching Floors shall not be liable for any damage whatsoever, whether contractual or extracontractual, that may be caused by:
- damage or defects caused by wear and tear, careless or incorrect use or acts of third parties;
- consequential damage and/or any indirect damage, such as fire and disturbances of any nature whatsoever, at the Customer’s premises where the products were stored;
- damage caused by reasons not attributable to Touching Floors, such as force majeure, third-party interventions, etc.
Insofar as Touching Floors’ insurer intervenes and provided that the insurer effectively provides cover and makes a payout, Touching Floors’ liability shall be limited to the amount paid out by the insurer, plus the applicable deductible, without Touching Floors being held liable for any other (uncovered and/or unpaid) damage.
The aforementioned limitation or exclusion of liability shall not apply in case of (i) fraud, (ii) wilful misconduct or (iii) misconduct in case such misconduct affects the life or physical integrity of a person.
For insurance purposes, any claim for damages must, under penalty of forfeiture, in any case be reported in writing within one month of becoming aware of the incident or damage on which the claim is based, and the defects and damages must be substantiated in an adversarial manner. It is not permissible to withhold or delay payment of outstanding invoices merely on account of (alleged) damages.

Exclusion of extra-contractual liability

The Parties expressly exclude the possibility that Touching Floors may be held liable by an aggrieved co-contractor of the Customer on the basis of extra-contractual liability as a result of an attributable shortcoming or negligence on the part of Touching Floors in the context of the Contract. This exclusion shall not apply in case of (i) fraud, (ii) wilful misconduct or (iii) misconduct in case such misconduct affects the life or physical integrity of a person.
The Customer undertakes to contractually exclude extracontractual claims by its customers or suppliers against Touching Floors.

Indemnity

The Customer shall always be obliged to indemnify Touching Floors or to hold Touching Floors harmless for any possible liability claim that may be instituted against Touching Floors on the grounds of damage for which Touching Floors’ liability is excluded in relation to the Customer.

Protection of personal data

The parties undertake to comply with the applicable legislation in Belgium regarding the protection and processing of personal data (including the Privacy Act regarding the processing of personal data and the GDPR) and their respective obligations under this legislation.

Reference

Touching Floors is entitled to refer to its cooperation with the Customer as a reference for promotional purposes.

Final provisions

The Contract contains the entirety of the agreement relating to its subject matter and supersedes and cancels all prior written or oral, express or implied communications, understandings and agreements between the parties.
If one or more provisions of the Contract should be declared null and void or become unenforceable due to a change in the law or for any other reason, the legality, validity and enforceable nature of the remaining provisions of the relevant clause and of the Contract as a whole, insofar as such provisions still have any effect or basis for existence, shall not be affected in accordance with Section 5.63 of the Civil Code. The parties undertake, to the extent legally possible, to replace the invalid provisions with a new provision that corresponds to the objectives and choices of the Contract. Any relative nullity may always be confirmed by the Party entitled to invoke such nullity, in accordance with Section 5.61 of the Civil Code.
Any failure by Touching Floors to demand performance of the provisions of the Contract shall not constitute a waiver or renunciation of the application of this or of any other provision.
Disputes regarding the formation, performance, compliance, validity or any other dispute under the Contract shall first and foremost be discussed mutually in an informal and discreet manner. If such consultations do not lead to a solution, the Enterprise Court of Antwerp, Tongeren Division, shall have exclusive jurisdiction. The parties expressly waive mediation in the event of a dispute concerning the collection of invoices that have not been paid, or not paid on time, and against which no protest was lodged.
Only Belgian law shall apply, to the exclusion of the Vienna Convention on Contracts for the International Sale of Goods.

Version May 2024