1.1. The legal relationship and every agreement between BR-Performance (B & C Consulting BVBA, enterprise number 0819.957.826, trade name ‘BR-Performance’ and with its registered office at 2830 Willebroek, Molenweg 94, Unit 2) and the customer is governed exclusively by these general terms and conditions, subject to a written agreement to the contrary that has been mutually approved.
1.2. The general terms and conditions are always available on the website: http://www.br-performance.be/nl-be/verkoopsvoorwaarden/. For any order, the terms and conditions that are published on the website at that time are applicable. The customer confirms, by means of every order and purchase of services or products from BR-Performance, that he or she has read and accepts these terms and conditions of use and sale.
1.3. These terms and conditions can be changed or amended by BR-Performance. Under no circumstances shall the general terms and conditions of the customer be applicable to the agreement between BR-Performance and the customer. Where one of these conditions are legally invalid, irrespective of the reason therefor, the remaining conditions remain applicable in full.
2. Information, quotations and order confirmation.
2.1. The information made publicly available by BR-Performance (through the website and elsewhere) is of a general nature and is subject to updating and/or amendments. The information itself is in principle not adjusted to personal or specific conditions. BR-Performance reserves the right to alter the characteristics of its services and/or products.
2.2. All quotations provided by BR-Performance are inclusive of VAT, are obligation-free and are only applicable for 14 calendar days as of the date of the quotation, unless otherwise agreed to.
2.3. The quotations are based on the prices and the rates applicable at that time which are observed by BR-Performance. The quotations are moreover calculated on the basis of two parameters, being 1) the price/rate applicable at that time for the purchased part and/or software, and 2) the price/rate for the working hours, calculated, inter alia, on the basis of the information as provided by the customer.
The number of working hours as stated on the quotation is always an estimate. Where this estimate is exceeded by more than 30%, the customer shall be informed thereof in advance, as provided for in article 3 of these general terms and conditions.
2.4. The quotations issued by BR-Performance are not binding unless they are signed or in any other manner unmistakably accepted by the customer and the customer has provided satisfactory identification. Every accepted quotation or order entails an obligation to pay on the part of the customer.
2.5. Every order placed by the customer for products and/or parts, other than for software, constitutes specific products and/or services for the customer. BR-Performance shall in turn order the products ordered by the customer from a third party, with due regard for the specifications provided by the customer. By accepting the quotation and the current general terms and conditions, the customer confirms that he or she has taken cognisance of the principle that the order in question must in any event be paid for by the customer, even in the event that the order is cancelled at a later date by the customer (see also article 3.3 et seq.).
2.6. BR-Performance shall only be obliged to provide services after it has been able to subject the vehicle for which the services are to be supplied to an in situ inspection. Should it emerge, in situ, that the vehicle is unsuitable for the services to be provided, BR-Performance reserves the right to refuse to provide the services. BR-Performance shall always inform the customer in a clear manner of the reasons for its refusal. Any transportation costs incurred or any other costs incurred cannot be recouped by the customer from BR-Performance.
The in situ inspection shall be performed by BR-Performance at the customer’s own risk.
3. Orders, prices and availability.
3.1. The prices for the services and products provided by BR-Performance are for informational purposes and are in euros (EUR, €). The price is that stated in the quotation. The prices are inclusive of VAT and exclusive of shipping and administrative costs. Additional processing costs are charged for some orders. Prices can be subject to fluctuations, and BR-Performance reserves the right to amend the prices of its products at any time. The products are invoiced on the basis of the prices applicable at the time that the order is placed, as stated on the website or determined in another manner or agreed to between BR-Performance and the customer.
3.2. BR-Performance shall process the orders insofar as the stock allows therefor and within the restrictions set out in these terms and conditions. BR-Performance reserves the right to refuse orders in the event of a serious suspicion of abuse of rights or bad faith on the part of the customer.
3.3. Where the customer wishes to cancel an order, this must always be performed in writing. The cancellation can only be deemed to be accepted where BR-Performance sends the customer a written confirmation thereof. As provided for in article 2.5, the customer is obliged, in the event of cancelling an order, to still pay for the ordered products and/or parts.
3.4. Once the products, or a part of the products, are installed by BR-Performance, the customer can no longer cancel the order.
3.5. All additional work, whether or not it is the direct object of the order, is invoiced separately, with such including but not limited to: working hours for assembly, reprogramming and installation. The customer shall receive an estimate of the anticipated costs in advance. Should unforeseen costs that are specific to the vehicle to be programmed arise, the customer is warned thereof in advance, whether verbally or in writing, but only where these costs exceed the estimate by more than 30%. Should the customer then decide not to pay these costs, he or she shall in any event be required to pay the costs already incurred.
4. Deliveries and acceptance.
4.1. BR-Performance delivers the ordered services and/or products at the time and to the location stated in BR-Performance’s confirmation of the order and after the price is paid in full, subject to an agreement to the contrary between the parties.
4.2. Delivery times are approximate and are only provided for indicative purposes (see also articles 2 and 3). Any delay cannot lead to compensation or the termination of the agreement by the customer. Where applicable, deliveries are shipped at the expense and risk (of, inter alia, storage, loading, transportation and offloading) of the customer.
5. Noncompliance with an obligation
5.1. If the customer or BR-Performance does not comply with one of their essential obligations, such as timely and full payment on the part of the customer, cancellation of the order after its confirmation or the delivery thereof by BR-Performance, the party that is not in default has the right to terminate the agreement without court authorisation or notice of default being required. In that event, fixed compensation of the sum of 30% of the price of the ordered products is payable by the party in default to the other party, without prejudice to the right of the creditor to demand greater compensation, subject to demonstrating greater damage actually sustained.
6. Inspection, acceptance, guarantee and liability.
6.1. The customer is required to immediately take receipt of and inspect the goods. The customer undertakes to inform BR-Performance by registered letter of any complaints, visible defects, damage or non-conformity with respect to the order within five days of the delivery of the product or service. In the event the customer notices immediately that there is an issue upon delivery of the product or service, he or she must accept the order only under written reservation. Deliveries are deemed to be accepted by the customer if the customer does not inform BR-Performance, or does not inform BR-Performance in a timely manner, of any complaints, with such in the manner set out in this article.
Signature of the work sheets holds as irrefutable evidence that the work stated therein was delivered.
6.2. BR-Performance guarantees that the products and/or services it sells are in accordance with the order placed and comply with the standard expectations of the customer.
6.3. BR-Performance applies the following guarantees:
6.4. BR-Performance provides a guarantee for its software for 5 years, as of the time of the original reprogramming, which consists of:
6.5. The guarantee can under no circumstances be invoked:
6.5.1. In the event of incorrect usage of the product;
6.5.2. When maintenance is performed by a company other than BR-Performance;
6.5.3. Where damage is due to force majeure (as defined below);
6.5.4. If additional, unmodified equipment is linked to the sold product;
6.5.5. If the customer causes deliberate damage to the product;
6.5.6. Damage to the product due to the actions of the customer.
6.6. The guarantee cannot be invoked in the event of vehicle issues as a results of its age, standard wear and tear, a defect resulting from poor maintenance or a product error on the part of the vehicle manufacturer.
6.7. In order to be able to invoke the product guarantee, the customer must inform BR-Performance within two months of the defect being discovered, or within two months of being reasonably able to discover the defect, by means of registered letter.
6.8. The guarantee is limited, where applicable, to the cost-free repair, the costs of the replacement parts and the labour, with the exclusion of, inter alia, indirect damage, immaterial damage, the costs of returning the product to BR-Performance and for returning it to the customer, and excludes the customer being able to, on any grounds whatsoever, claim any form of compensation. The guarantee is in any event limited to the replacement of the defective product, insofar as replacement thereof is possible. Where replacement is not possible, the guarantee is limited to refunding the price paid and accepting the defective product back, insofar as is possible.
6.9. BR-Performance cannot be held liable in the event of the loss or theft of or damage to objects that are left behind in the vehicle.
6.10. The customer is aware and accepts that BR-Performance can at no time be held liable for any direct or indirect, incidental, consequential or any other damage that is due to, arises from or related to the products and/or services provided by BR-Performance.
6.11. Liability on the part of BR-Performance is in any event limited to the sum for which BR-Performance is insured on the grounds of the civil liability insurance that it has taken out. Even in the event of a serious error on the part of BR-Performance, its liability is limited to the sum of 25,000.00 EUR.
7. Transfer of ownership, delivery and right of retention
7.1. The delivered products remain the property of BR-Performance, even where these products are modified or incorporated, until the complete payment of the price, being the principal sum plus any interest charges, costs and taxes. While full payment has not been performed, the customer is not entitled to use, sell or pledge the products or to use them as a surety vis-à-vis third parties. Notwithstanding this retention of title, the risks are transferred to the customer at the time of delivery. As of the time of delivery, the customer bears all risk with respect to the sold goods.
7.2. The products are always delivered ‘ex works’.
7.3. If the customer fails to collect his or her vehicle in good time, a safekeeping fee can be charged.
7.4. If a customer cannot make its vehicle available within time agreed upon, BR-Performance must be informed thereof at least 48 hours in advance, in writing and in unambiguous terms.
7.5. After the second cancellation of an appointment, compensation is payable to the other party of 20% of the quotation provided to the customer within 8 days of notice of default being delivered by registered letter. This does not affect the obligation on the part of the customer to pay for the ordered parts, in accordance with article 2.5.
7.6. In the event of the installation of aftermarket parts the customer is responsible for collecting his or her parts (being the original parts replaced by BR-Performance at the request of the customer) in good time. The customer surrenders the original parts if they are not collected within 14 days, starting as of the date of installation.
8. Invoicing and payment.
8.1. All prices are always listed in euros.
8.2. The price is, subject to a statement to the contrary on the invoice, payable no later than upon receipt of the goods.
8.3. In the event of non-payment or late payment, daily default interest shall be payable by law, and without notification thereof being required, that is equal to, depending on the nature of the legal relationship (consumer or company), (i) the standard statutory interest rate plus 5%, without such being less than 10% per annum, or (ii) the interest rate set in implementation of the Law of 2 August 2002 on late payments in commercial transactions.
8.4. A fixed payment in the form of compensation is also payable due to non-payment or late payment, without advance notice of default being required, that is equal to 15% for the non-payment or late payment of up to 1,500.00 EUR, with a minimum of 120.00 EUR. For the non-payment or late payment of 1,501.00 EUR to 10,000.00 EUR, the statutory damages amount to 10% of the invoiced sym. For the non-payment or late payment of sums in excess of 10,000.00 EUR, statutory damages of 8% apply. These statutory damages cover the extrajudicial collection costs and do not impact upon the right to demand litigation costs for the judicial collection costs.
8.5. In the event of non-payment BR-Performance reserves the right to exercise its right of retention until payment in full has occurred.
9.1. BR-Performance always does everything possible to ensure its customers are satisfied. However, should the customer still have complaints with respect to BR-Performance’s goods and/or services, the complaints can be addressed to BR-Performance at (contact details + complaints procedure).
9.2. BR-Performance endeavours to deal with every complaint within 14 workdays.
10. Force majeure.
Force majeure is deemed to include: any situation that BR-Performance was unable to take into account at the time of entering into the agreement, the result of which is that the standard performance of the agreement cannot be reasonably demanded by the customer, such as war or the danger of war, irrespective of whether or not Belgium is directly involved therein, full-scale or partial mobilisation, a state of siege, unrest, sabotage, floods, fire or other destruction of or damage to factories or warehouses, lock-outs, sit-ins, strikes, machinery or equipment breakdowns or other disruptions suffered by either BR-Performance or the companies from which BR-Performance obtains the goods, raw materials or other tools or where BR-Performance is required to perform any work, restrictive governmental or public-law measures of any nature whatsoever, hindrance as a result of weather conditions, a lack of transportation, restrictions to or hindrances of production and/or transport of goods, raw materials and/or tools, fuels and/or energy.
11. Intellectual property rights on the part of BR-Performance.
11.1. The goods, services and the content and all parts of the website of BR-Performance (including trademarks, logos, designs, drawings, data, product and/or company names, texts, images, software, etc) are protected by intellectual property rights (inter alia copyright and trademark right) that belong to BR-Performance or to third parties who have granted use thereof to BR-Performance. Consequently, irrespective of the reason therefor, the customer is not entitled to modify, copy, disseminate, transmit, distribute, re-offer for sale, reproduce, dispose of under licence, transfer or sell any information or content that was obtained whatsoever, nor to create works derived from the aforementioned elements. The delivery of goods or services by BR-Performance does not entail any transfer or assignment whatsoever of its intellectual property rights. It is not permitted, irrespective of the reason therefor or the manner thereof, to create a link between BR-Performance’s website and another website or create any link that feeds back automatically to the BR-Performance website without the consent of BR-Performance.
11.2. In particular, the software provided by BR-Performance remains the sole property of BR-Performance. The customer is only granted a personal, temporary and nonexclusive right of use, which the customer may not transfer, dispose of, pledge, assign or lend out in any form whatsoever, whether for payment or free of charge. The customer shall not make the software available to third parties in any manner whatsoever, whether directly or indirectly or for remuneration or free of charge. The customer is prohibited from copying the software. The customer is prohibited from translating, modifying, arranging or in any other manner changing the software without the advance written consent of BR-Performance. Upon the termination of the use of the software, the customer shall destroy all copies of the software and associated documentation and manuals. The customer ensures that the software remains confidential.
11.3. Any breach of the intellectual property rights of BR-Performance can lead to civil or criminal prosecution, pursuant to the applicable legislation.
12. Implications of modifications to a vehicle and obligations on the part of the customer
12.1. The modifications performed on the vehicle could mean changes to the CO2 emissions, the NOx emissions and/or the fuel consumption of the vehicle, both positive or negative. The customer acknowledges that BR-Performance has informed him or her of the impact such modifications can have on the CO2 emissions, the NOx emissions and/or the fuel consumption of the vehicle, including possible tax consequences.
12.2. The modifications performed on the vehicle can be categorised under the ‘comprehensive changes’ principle. The modifications performed could mean that the vehicle no longer complies with the vehicle’s existing inspection certificate, the official inspection report, the insurance taken out or the certificate of compliance, which means that the vehicle can no longer be used on public roads.
12.3. By signing these general terms and conditions the customer confirms that he or she is aware of the obligations on his or her part prior to using the services of BR-Performance and/or purchasing the products of BR-Performance. The customer moreover confirms that he or she has done that which is necessary in order to comply with the applicable legislation with respect to purchasing and using the goods and/or services of BR-Performance.
The obligations on the part of the customer include, but are not limited to:
- Obtaining consent from the vehicle manufacturer prior to performing any modification on the vehicle (or having such performed);
- Taking the necessary steps for having the vehicle immediately inspected after the modifications are performed;
- Doing that which is necessary to ensure that the certificate of compliance, the inspection certificate and the official inspection report are amended in accordance with the modified vehicle;
- Informing the necessary bodies, including the customer’s insurance company, of the modifications performed on the vehicle;
- Not taking a vehicle onto public roads at any time whatsoever which is not permitted to access these roads as a result of the performed modifications.
12.4. By signing these general terms and conditions the customer confirms that he or she is adequately aware of all the consequences that the goods and/or services of BR-Performance could have with respect to the vehicle.
12.5. BR-Performance can in no manner whatsoever be held liable (i) if the customer’s vehicle is not approved or is not approved for reintroduction onto the public roads for any reason whatsoever, and/or (ii) for any change to the CO2 emissions, the NOx emissions and/or the fuel consumption of the vehicle resulting from the modifications performed.
13. Miscellaneous provisions
13.1. The fact that a right is not invoked or a penalty not applied by BR-Performance never means that that right is waived.
13.2. If one of the provisions of these general terms and conditions is invalid, that shall not result in all the provisions thereof being invalid.
13.3. For all further information or comments concerning these general terms and conditions, please contact BR-Performance at the following address: Molenweg 94, Unit 2, 2830 Willebroek.
13.4. These general terms and conditions apply in full when the customer is a consumer within the meaning of Book VI of the Code of Economic Law or in the meaning of section 2.1 of article 1649bis of the Civil Code, i.e. when he or she acquires or uses the services or products that are the object of an agreement for non-professional or non-commercial purposes.
13.5. If the customer is not a consumer within the meaning of article 13.4 above, these general terms and conditions are likewise applicable, subject to the following amendments:
1. Disputes and jurisdiction.
1.1. In the event of any disputes between BR-Performance and the customer with respect to the use of the services provided by BR-Performance, the purchase of products from BR-Performance and/or the application or interpretation of these general terms and conditions or the agreement between BR-Performance and the customer, the Dutch-language courts of the judicial district of Brussels have sole jurisdiction.
1.2. Belgian law is exclusively applicable to the agreement.