GENERAL TERMS AND CONDITIONS OF SALE, VERSION 2015
1. APPLICABILITY AND DEVIATIONS: these General Terms and Conditions of Sale shall be applicable to all orders placed with the Seller. The Buyer is assumed to unreservedly accept them by the mere fact of his having placed his order. Any deviations from the present General Terms and Conditions of Sale, including any deviations stated on documents issued by the client or his representatives, cannot be held enforceable against the Seller unless confirmed in writing by the latter. Even in such instances, these General Terms and Conditions of Sale shall remain of undiminished force and application for all other clauses therein.
2. PRICE OFFER AND ORDER CONFIRMATION: unless stated otherwise in writing, the Seller’s price lists and price offers shall be understood to be indicative only. Any order placed shall commit the client but be binding on the Seller only following its written confirmation. Any eventual or alleged inaccuracies in an order confirmation need, on penalty of voidance, to be notified in writing within eight (8) days of the date of this confirmation. The Buyer shall without prior written consent on the part of the Seller be prohibited to transfer either directly or indirectly, or in whatever other manner assign to a third party, the benefits or obligations resulting from a price offer, an order, or an agreement generated and/or concluded within that context.
3. SAMPLES, DESCRIPTIONS, etc.: unless agreed to otherwise in writing, samples, drawings, dimensions, weights, and other suchlike data shall be understood only as approximating descriptions of products, and any and all eventual and possible deviations therefrom, whatever their nature, can never in any way be invoked by the Buyer in order to refuse acceptance of, or payment for, the products or to demand dissolution of the agreement or claim any kind of indemnity. Similarly, the Seller, barring a written agreement otherwise, can be held liable on the grounds of, case pertaining, the unusability of Products for the specific purpose for which the Buyer or his client has ordered and intended them.
4. DELIVERY TERMS: unless otherwise agreed to in writing, the delivery terms as stated by the Seller shall always be understood to be approximations only and hence never binding. Even in the latter case, barring a serious shortcoming on the Seller’s part, any delays in deliveries can only give grounds for an indemnity if such has been agreed to beforehand and in writing. In any event, the amount of this indemnity shall never exceed 5% of the total price of the order. Even if under a stipulation of indemnification a binding delivery date has been agreed upon, the Seller shall in case of an extra-ordinary circumstance, such as force majeure, invariably be entitled to suspend the delivery until the end of the extra-ordinary circumstance obtaining, with proviso to subsequently deliver the goods within the agreed-to term, or to terminate the sale altogether, without either in the one or the other case the Buyer being in any way entitled to an indemnity.
5. TRANSPORT: unless otherwise agreed to in writing, all deliveries shall be made ex-works or warehouse of the Seller (Ex-Works Incoterm 2000) and the Buyer shall invariably be responsible for the transportation charges. Even if under a stipulation of another delivery location the goods were sold and shipped FRANCO or FOB, they shall invariably be transported at the risk of the Buyer. Unless another term was agreed upon in writing, the Buyer shall take possession of his purchased goods at the latest fourteen (14) days after they have been placed at his disposal. In case the collection is not happening within this term or within a special term as agreed upon, the Seller shall be entitled in good right, without prior notice of default, at his own choice and preference, to either invoice the purchased goods and demand their payment, or consider their sale as dissolved. In the first instance, the goods shall, at the Buyer’s account and risk, be stored with the Seller or with third parties and the Seller shall be entitled, in addition to the selling price, to charge the Buyer for all costs resulting from this arrangement. In the second instance, the Buyer shall be liable to pay to the Seller a fixed and irreducible indemnity equal to 60% of the total amount of the sale.
6. OWNERSHIP AND RISK: the Seller shall retain full title of ownership to all of the goods delivered by him until the time of full settlement of the purchase price, plus any possible interests and charges as may obtain. The Buyer cannot, therefore, claim possession of any goods not fully paid for and, more particularly, cannot pledge them as collateral with third parties or transfer ownership to them. Until the Buyer has obtained full ownership of the Products, it shall be incumbent on him to ensure that the Products in his possession can at any and all times be immediately identified by the Seller as his property located on the Buyer’s premises. At the Seller’s request, the Buyer shall draw up all documents and perform all acts as may be deemed necessary or desirable to enforce upon the Buyer the Seller’s retention of title to the goods. Irrespective of, and without prejudice to, any retention of title, the risk of loss and/or damage of and to the sold Products or any parts thereof shall in any event pass to the Buyer as soon as the Products have been delivered to the latter conform to the agreed-to Incoterm.
7. POSTING A GUARANTEE AND SUSPENSION OF DELIVERIES: irrespective of the terms of payment agreed upon, the Buyer accepts that the Seller may at any and all times, that is to say, prior to the delivery or with respect to the continuation of the delivery of goods, require a bank guarantee as a surety that the Buyer shall duly abide by his payment obligations. As long as this guarantee has not been posted, the Seller shall be entitled to suspend all further deliveries or to cancel all current orders for Products. The same provision shall pertain for as long as the Buyer has not fully complied with his obligations to pay for any already executed delivery(ies). No complaint on the part of the Buyer shall entitle the latter to postpone or suspend payment of overdue amounts.
8. WARRANTY TERM AND COMPLAINTS: unless a different warranty term has been agreed to in writing, the Products shall remain guaranteed against defects during a period of eight (8) days following their delivery. In order to be entertained, all complaints need within said term to be submitted by registered letter to the Seller’s administrative offices. In default of such a communication, the Buyer shall be deemed to have accepted the goods. The applicable warranty period shall at all times start from the date on which the goods were delivered or should have been collected. Nonetheless, all warranty shall lapse in cases where the goods have already been treated or processed further, in case of their normal usage, in case the directives for use were not followed to the letter, or if the goods were not judiciously handled. In case the complaint is found to have merit, the Seller’s obligations shall at any and all times be limited to the free replacement or repair of the delivered goods or of the defective parts thereof, without his being liable to pay any additional indemnity, on whatever grounds. The costs of packaging, transportation, and insurance related to the shipping of the alleged defective Product(s) or part(s) thereof to the Seller for its/their repair or replacement shall be borne by the Buyer. The costs of packaging, transportation, and insurance related to the return shipment of the repaired or replaced Product(s) or part(s) thereof to the Buyer shall be borne by the Seller.
No single complaint by the Buyer shall entitle him to postpone a payment or suspend the payment of overdue amounts. The sole liability
on the part of the Seller and the only recourse on the part of the Buyer with respect to any complaint concerning the delivered Product shall remain limited to the price of the Product that is the subject of the complaint, or, at the Seller’s option, its replacement instead.
9. WARRANTY TERM AND RESALE: in case of resale, the Buyer shall undertake to make the present General and Special Terms and Conditions enforceable against his client. In any event, the Buyer agrees to hold the Seller free and harmless against all consequences, whatever their nature, of claims that might or could be lodged by his client versus the Seller with respect to the sold products and that might exceed the limits of the claims which the Buyer himself could have instituted versus the Seller.
10. PRICES: unless agreed to otherwise, all prices are quoted exclusive of VAT, import duties, other charges, levies, and sundry fees as obtain. Prices are quoted in Euro currency unless stated otherwise. The Seller reserves the right to change the prices at any time without prior notice in the event of an increase in one or several factors such as would affect cost prices.
All charges, taxes, excise duties, and sundry other fees, including but not limited to VAT, that now or in the future might or could be levied with reference to the sale of the Products, shall be borne by the Buyer, except for what concerns such tax and other charges that are payable by the Seller prior to the delivery of the Products in application of the agreed-to Incoterm.
11. PAYMENTS: barring explicit provisions or agreement to the contrary, all of the Seller’s invoices are payable on receipt, and this without deductions or discounts. No reminders for payment will be issued by the Seller. In case of default of payment on receipt of invoice or of non-payment of one single invoice at the latest on its due date, the Seller shall be entitled not only to pursue payment of the invoice via legal recourse but likewise to demand immediate payment of all other still unpaid accounts, whereby all possibly granted payment terms shall lapse in good right and de iure. In case of delinquent payment of an invoice payable upon receipt or at its later due date, an arrears interest of 1% per month shall be charged in good right and without need for a notice of default, to be counted as of the invoice date, this in indemnification of loss of interest occasioned by the foregone capital. Moreover, the amount of the invoice shall be conventionally raised by 15%, with a minimum surcharge of EUR 100 in compensation of all loss and/or damage resulting from the disruption of, amongst others, business activities and for personnel and administrative costs. In the case of a partial delivery or deliveries in instalments, to which practice the Seller reserves the right, invoices may be submitted for each partial delivery. Bills of exchange or securities shall not create a novation of a debt or lead to a departure from the payment terms stated in the present Terms and Conditions of Sale. Default of payment of a bill of exchange on its due date shall result in the immediate claimability and collectability of all other not yet lapsed bills for the same sale and/or Buyer. On payment by bills of exchange, all related costs (bank, disconto, protest costs) shall be at the charge of the issuing party.
12.1 In the event that (i) an application for bankruptcy has been entered by or versus the Buyer, or (ii) the Buyer has been declared bankrupt, or (iii) becomes insolvent, or, in the reasonable opinion of the Seller, his credit worthiness has been compromised, or (iv) procedures are being instituted by or versus the Seller with a view to the appointment of a liquidator, a reorganisation, liquidation, dissolution, a rescheduling of liabilities, or any other similar measure, or (v) if the Buyer at any moment fails to satisfy or fulfil any material commitment or condition, the Seller shall, at his own choice and preference, be entitled to demand either the execution or the cancellation of the sale. In the latter case, the sales agreement shall automatically and without the need for a prior notice of default or of cancellation be terminated with immediate effect, as of the moment that the Seller has expressed his intention by means of a simple registered letter to that effect. In such an instance, the Seller shall be entitled, with reservation as to all other rights, to regain possession of the Products without any court intervention, in the process of which it shall be incumbent on the Buyer to assist the Seller in his endeavours. In such an instance, the Buyer shall not be entitled to any set-off or compensation.
12.2 The foregoing stipulations do not imply or presume a waiver of the Seller’s right to demand, in the event of a delinquent payment and at the Seller’s own preference, the termination of the sale with indemnity as a consequence. Any time a sale is either wholly or partially dissolved in consequence of any fault or shortcoming on the part of the Buyer, the latter shall be liable to pay the Seller, in compensation of incurred costs and foregone profit, a fixed and irreducible indemnity equal to 60% of the amount of the terminated sale or part thereof, this without prejudice to the Seller’s right to provide evidence of, and to claim, higher losses and to demand reimbursement of the expenditures incurred by the Seller in his attempts to reclaim possession of the goods and to restore them to their original condition.
13. FORCE MAJEURE: no one party shall be held liable vis-à-vis the other party with respect to any breach or delay in the execution of any of her commitments in consequence of such eventualities as a force majeure situation, fire, explosion, strike, riots, civil war or international war, invasion, refusal by the public authorities to issue import or export licences, the cancellation of such licences, impossibility to collect goods and/or base materials and/or components for reason of a force majeure situation at the production site, or because of an unforeseen happening with, or the non-delivery or delayed delivery by, a supplier of goods or services, etc., or because of any other similar or dissimilar cause and/or event occurring beyond the reasonable control of one of the parties.
14. CONFIDENTIALITY – INTELLECTUAL PROPERTY: unless agreed to otherwise by the Seller, it shall under all circumstances be incumbent on the Buyer to maintain strict confidentiality with respect to private information or information that belongs to the Seller. All patents, brand names, copyrights and/or any and all other intellectual property rights and/or any and all proprietary or confidential information pertaining to the Product shall remain in the possession and full ownership of the Seller or his licensor, case pertaining, and nothing herewith shall be considered as a granting to the Buyer, implicitly or in any other way, of any right, title to or interest in, or any licence under any intellectual property right, confidential information, or any other trade secret that either now belongs, or in the future will belong, to the Seller. Software, made available to the Buyer by the Seller, shall invariably remain the sole and exclusive property of the Seller or the licensor. It shall be incumbent on the Buyer to remain in full compliance with the conditions of the licence which the Seller or the licensor shall impose. The Seller grants hereby to the Buyer a non-exclusive licence for the exclusive use of the software in the operation of the Products delivered herewith. The Seller herewith further grants to the Buyer the right to assign the software usage licence to the end user to whom the Buyer may eventually sell the Products.
15. JURISDICTION: any dispute that might or could arise out of the present agreement shall be heard and entertained by the competent Courts of Turnhout. All sales transactions shall be governed by Belgian law.