the General Terms and Conditions

Definitions and Scope of Application

The General Terms and Conditions of Sale, hereinafter referred to as “the General Terms and Conditions” apply to all orders placed with Koan Asaky, hereinafter referred to as “the Seller”.

These general conditions form the contract between the Seller and the Buyer. The Seller and the Buyer are hereinafter referred to as the “Parties”.

The “Buyer” is any natural or legal person who orders products from the Seller.                                   The “Consumer” is the customer, a natural person, who acts for purposes that do not fall within the scope of his commercial, industrial, craft or liberal activity.

These Terms and Conditions are the only ones applicable. In any case, they exclude the general or special conditions of the Buyer that the Seller would not have expressly accepted in writing.

The general terms and conditions are freely accessible at any time on the Seller’s website: “koanasaky.com”, so that by placing an order with him, the Buyer declares that he has read these terms and conditions and confirms his acceptance of the rights and obligations relating thereto.

The Seller reserves the right to modify these terms and conditions at any time and without prior notice, provided that these changes appear on its website. These changes will apply to all subsequent product(s) orders.

Offer and Order

To place an order, the customer chooses the product(s) he wishes to order by surfing the seller’s website, indicates the contact details requested, verifies the correctness of the order, and then makes the payment of his order.

After receiving confirmation of payment of the order by the banking institution, the seller shall send the buyer a summary of his order, including the order number, the products ordered and their price, these terms and conditions or a link to them, as well as an indication of the likely completion time of the order.

The seller reserves the right to suspend, cancel or refuse the order of a buyer, in particular if the data communicated by the customer is manifestly erroneous or incomplete or where there is a dispute concerning the payment of a previous order.

In case of cancellation of the order by the buyer after its acceptance by the seller, for whatever reason, except in case of force majeure, a sum equivalent to 30% of the price of the order will be acquired from the seller and invoiced to the customer, as damages.

Price

The price of the products is indicated in euros, all taxes included.

Any increase in VAT (Value Added Tax) or any new tax that would be imposed between the time of order and the time of delivery will be automatically charged to the buyer.

Any delivery costs are not included in the price indicated, but are calculated separately, during the order process, depending on the delivery method and place and the number of products ordered.

Delays

Unless otherwise expressly agreed in writing by the seller, the delivery periods mentioned in the special conditions are not strict deadlines. The seller can only be held liable if the delay is significant and if it is attributable to him because of his gross fault.

The buyer may not invoke the delivery times to request the termination of the contract, claim damages or make any other claim, unless otherwise stipulated in writing and expressly accepted by the seller.

In the event of a delay exceeding the 30 working days period, the buyer must send a formal notice by registered mail to the seller, who may then benefit from 50% of the time prescribed to deliver the product(s) ordered.

Ownership

The seller remains the owner of the ordered products until they are fully paid.

The right of ownership of the products is transmitted to the buyer only after the collection or delivery of the items and after full payment of the order. By way of derogation from Article 1583 of the Civil Code, articles sold, delivered or installed remain the exclusive property of the seller until full payment of the invoice. As long as the sale price has not been paid, the customer is prohibited from pawning, offering or using the items as collateral in any way. It is expressly forbidden to the customer to make modifications to these articles, to make real estate by incorporation or by destination, to sell them or to dispose of them in any way.

As long as the seller has the rights of ownership over the delivered goods, in accordance with the provisions of this article, the buyer will remain responsible for the maintenance in good condition of these products. During this period, only the buyer can be held responsible for any loss or damage of the products. If necessary, the buyer undertakes to insure the products against any risk. The buyer also agrees to store the products in such way that they cannot be confused with other products and that they can always be recognized as the property of the seller.

Conditions of cancellation

In accordance with article VI.47 of the Code of Economic Law, the consumer who orders products remotely from the seller has a period of 14 calendar days to date, for the products, from the day of delivery of the products or the notification of their availability to the point of withdrawal provided, to notify the seller that he waives the purchase, without penalties and without indication of reasons.

Where this period expires on a Saturday, a Sunday or a public holiday, it shall be extended to the next working day.

The consumer may notify his willingness to renounce the purchase, by means of the withdrawal form posted on the seller’s website, by means of the form sent with the order form or available on the website of the S.P.F. Economie, P.M.E., Classes moyennes et Energie: economie.fgov.be, or by an unambiguous statement setting out its decision to withdraw from the contract.

The consumer will have to send back the product(s) to which he/she has renounced in perfect condition in his/their original packaging.

Only direct return costs will be borne exclusively by the consumer.

The seller shall return the amount paid as soon as possible and at the latest within 14 days of the re-dispatch of the products.

A consumer who opens or uses a product before the expiry of the withdrawal period shall be deemed to have waived his right of withdrawal in respect of that product.

Similarly, the consumer will not be able to exercise the right of withdrawal if he is in the case of one of the other exceptions referred to in Article 53 of Book VI of the Code of Economic Law, in the case of the supply of goods made up according to consumer specifications or clearly personalized.

Termination of the order

A buyer who does not comply with the conditions to benefit from the right of withdrawal described in the previous article of the present conditions and who wishes to cancel his order informs the seller who will indicate the steps to follow.

Any deposit paid by the buyer to the seller will not be refunded. If no deposit has been paid, the seller may claim from the customer a cancellation indemnity equivalent to 30% of the price of the products whose order has been cancelled by the buyer.

Delivery

The delivery times indicated by the seller are provided for information purposes only and do not bind the seller. A delay in the delivery of the order can therefore in no case give rise to any compensation, termination of the contract, suspension of the obligations of the buyer, nor to the payment of damages.

The order is only delivered to the buyer after full payment. The transfer of ownership and risk is effected when the order is fully paid. The buyer is therefore informed that he alone bears the burden of the risks related to the delivery.

Availability

The products offered for sale by the seller are within the limits of available stocks.

In case of unavailability of one or more product(s) after payment of the order, the seller agrees to inform the buyer as soon as possible and to give him the choice between a refund, a modification of its order or a delivery postponed until the end of the stock shortage of the product(s) concerned.

Receipt of order and complaint

The buyer is required to check the apparent good condition as well as the conformity of the products that are delivered to him or that he withdraws at the point of withdrawal provided with the products that he ordered.

Any complaints must be made in writing, within 15 days after the delivery of the order or the notification of its availability at the point of withdrawal provided. Otherwise, they cannot be considered, and the buyer will be deemed to have received the order definitively.

If a claim is founded, the seller/service provider will have the choice between replacing or reimbursing the price of the products concerned.

Intellectual Property

The information, logos, designs, trademarks, models, slogans, graphic charters, etc., accessible through the website or the catalog of the seller are protected by the right of intellectual property.

Unless expressly agreed otherwise in advance, the buyer is not authorized to modify, reproduce, rent, borrow, sell, distribute or create derivative works based in whole or in part on the elements present on the website or the catalog of the seller.

Unless expressly waived, the agreed price therefore does not include any transfer of intellectual and/or industrial property rights in any way.

Guarantees

• Legal guarantee for all customers

In accordance with Articles 1641 to 1643 of the Civil Code, the seller is obliged to guarantee the products against hidden defects which render the products unfit for their intended use, or that reduce this use so much that the buyer would not have acquired them or would have given a lower price if he had known them.

In the event of the discovery of a hidden defect, the buyer must act promptly, in accordance with Article 1648 of the Civil Code, and will have the choice between making the product affected by a hidden defect against a total refund or keeping it against a partial refund.

The seller is not obliged to guarantee the products against apparent defects, which the buyer could or should have realized at the time of purchase. Likewise, the seller is bound to guarantee the products only against the hidden defects which he knew at the time of the sale, and which he refrained from informing the customer.

Only the invoice, the receipt or the purchase order are valid as guarantee certificates for the buyer vis-à-vis the seller. These documents must be kept by the client and presented in their original version.

• Additional legal guarantee for buyers who are consumers

In accordance with Article 1649c of the Civil Code, the customer who is a consumer also has a legal warranty of two years for all defects of conformity which existed at the time of delivery of the product, and which appeared within a period of two years from it.

This warranty includes the repair or replacement of the defective product at no cost to the consumer.

If, however, such repair or replacement proves impossible, disproportionate to the seller or to the customer, a reduction or refund may be proposed to the consumer. The seller and the customer may agree to a refund only by handing over the defective products by the latter.

If spare parts or specific accessories necessary for the repair of the product are no longer available from the manufacturer, the seller cannot be held responsible for the loss of the possibilities of use of the product.

The consumer is obliged to inform the seller of the existence of the lack of conformity, in writing, within a maximum period of two months from the day he has found the defect, under penalty of forfeiture of his right to claim.

Only the invoice, receipt or purchase order shall be valid as guarantee certificates for the consumer vis-à-vis the seller. These documents must be kept by the consumer and presented in their original version. The warranty period starts on the date indicated on these documents.

This warranty does not apply in the case where the failure results from incorrect use, external causes, poor maintenance, normal wear and tear, or any use that does not comply with the manufacturer’s or seller’s instructions.
In the event of damage, theft or loss of a product delivered for repair, the seller’s liability shall in any event be limited to the selling price of the product. The Seller shall under no circumstances be liable for the loss or reproduction of data stored in or by electronic devices provided for repair.

Responsibility

The buyer acknowledges and accepts that all the obligations of which the seller is debtor are exclusively means and that he is responsible only for his wrongdoing and gross negligence.
In the event that the buyer proves the existence of a serious or delusive fault on the part of the seller, the damage for which the buyer can claim compensation includes only material damage resulting directly from the fault attributed to the seller to the exclusion of any other damage and may, in any event, not exceed 75% (excluding taxes) the amount actually paid by the buyer in execution of the order.
The buyer also acknowledges that the seller is not liable for any direct or indirect damages caused by the delivered products, such as loss of profit, increased overhead, loss of customers, etc.

The seller is also not liable in case of communication of erroneous data by the buyer, or in case of order made on his behalf by a third party.                                                                                     
Finally, it is up to the buyer to inquire about any restrictions or customs duties imposed by his country concerning the products ordered. The seller will therefore not be held liable if the buyer must face any additional restriction or tax due to the policy adopted by his country in this regard.      
If the buyer imposes on the seller a process or materials of a particular quality, origin or type, despite the written and reasoned reservations of the seller, The latter shall be relieved of any liability for defects resulting from the choice of process or materials.

Internet and new technologies

The buyer acknowledges the restrictions and risks related to the use of the Internet or any other means by which the Website is currently or will be made available in the future. The buyer also recognizes the risks of storing and transmitting information by digital or electronic means.
The buyer agrees that the seller cannot be held liable for any damage caused by the use of the website (as well as any applications) of the seller or the internet, as a result of the aforementioned risks.
The buyer further agrees that the electronic communications exchanged and the backups made by the seller may serve as proof.

Miscellaneous provisions

Force majeure or accidental event. The seller may not be held liable, both contractually and extra-contractual, in the event of non-performance, temporary or definitive, for his obligations where such non-performance results from a case of force majeure or chance.
In particular, the following events will be considered force majeure or chance events:

• the total or partial loss or destruction of the Seller’s computer system or its database where any of these events cannot reasonably be directly attributed to the Seller and there is no evidence that the Seller failed to take the reasonable measures to prevent any of these events, (2) earthquakes, (3) fires, (4) floods, (5) epidemics, (6) acts of war or terrorism, (7) strikes, declared or not, (8) lockouts, (9) blockades, (10) uprisings and riots, (11) shutdown of energy supply (such as electricity), 12) a failure of the Internet network or data storage system, 13) a failure of the telecommunications network, 14) a loss of connectivity to the Internet network or the telecommunications network on which the seller depends, 15) a fact or decision of a third party where that decision affects the proper performance of this contract or 16) any other cause beyond the reasonable control of the seller.

Inaccuracy

If, due to circumstances beyond the control of the seller, the performance of his obligations cannot be continued or is simply made more onerous or difficult, the seller and the customer undertake to negotiate in good faith and loyally an adaptation of the contractual conditions within a reasonable time in order to restore the balance. Failing agreement within a reasonable time, each of the parties may invoke the termination of the contractual relationship between them without compensation or indemnity of any kind. 

Termination of the Agreement

In case of insolvency of the buyer or in case of unpaid debts, even in the framework of previous contracts between the client and the seller, the latter is entitled to suspend the performance of its obligations until the full repayment by the buyer of any unpaid debt due to the seller.

In case of non-performance of its obligations by the buyer, the seller may terminate the contract to the exclusive torts of the buyer without delay or indemnity and, if necessary, may claim from him by any legal means the payment of damages.

Illegality

The possible illegality or invalidity of an article, paragraph or provision (or part of an article, paragraph or provision) shall not affect in any way the legality of the other articles, paragraphs or provisions of these General Conditions, nor the rest of this article, paragraph or provision, unless there is an obvious intention to the contrary in the text.

Titles

The titles used in these Terms and Conditions are for reference and convenience purposes only. They do not affect the meaning or scope of the provisions they designate.

Non-waiver

Inertia, negligence or delay by a party in exercising a right or remedy under these Terms and Conditions shall not be construed as a waiver of such right or remedy.

Governing law and competent courts

These general conditions are subject to Belgian law.
In the event of a dispute concerning the validity, interpretation, performance or termination of these general conditions, the parties undertake to resort to mediation prior to any other method of dispute resolution.
The parties therefore appoint a mediator approved by the Federal Mediation Commission (Bd Simon Bolivar, 30 (WTC III) at 1000 Brussels – https://www.cfm-fbc.be/fr) by mutual agreement or assign a third party to this designation.
Once the mediator has been appointed, the parties shall, with the assistance of the mediator, determine the arrangements for organizing the mediation and the duration of the process.
Each party may terminate the mediation at any time, without prejudice to the mediation.
If mediation fails, only the courts of the judicial district of Brussels will have jurisdiction.