1.1 These general terms and conditions of sale (“GT&C”) apply to any and all offers, orders and agreements with respect to the sale and delivery of products (“Products”) by the relevant selling entity as identified in the relevant purchase order and/or order confirmation and/or invoice (the “Company”) to the buyer.
1.2 These GT&C exclude and will prevail over any other terms and conditions, including any terms and conditions of the buyer or its representatives contained in or referred to in order(s), in correspondence or elsewhere and this notwithstanding any provisions to the contrary in such other terms and conditions. Any deviations to the present GT&C require prior written consent of the Company in order to be effective.
2.1 All rates, technical information, designations of weight and dimensions, all specifications and samples, advertising material, and illustrations communicated by Company or contained in the Company’s catalogues and/or on its website are only provided as mere indications. They shall not form part of the contract nor have any contractual force. The quantity, price and description of and any specification for the Products shall be only those set out in the Company’s written order confirmation in accordance with Article 2.3 of these GT&C. The buyer acknowledges that it does not rely on, and waives any claim for breach of, any recommendations, representations or warranties which are not expressly confirmed in the Company’s written order confirmation in accordance with Article 2.3 of these GT&C.
2.2 Any orders placed by the buyer (via EDI, fax, order form, by email, telephone, etc.) will be subject to these GT&C, and to the particular sales contract explicitly agreed between the parties (if any), and can only be annulled or amended by the buyer subject to Company’s prior written consent.
2.3 No order will be deemed binding on the Company unless and until the Company issues a written acceptance of such order. The Company, at its discretion, may cancel an accepted order by serving written notice to buyer in the event that buyer fails to properly fulfil any of its obligations hereunder, which failure is not cured within fifteen (15) days of Company’s written notice thereof (if capable of being cured). Company’s right to cancel an accepted order on buyer’s default is without prejudice to Company’s right to claim additional damages, or any other rights Company may have (including the right to suspend its own obligations towards buyer).
2.4 The Company reserves the right to request an amendment to the order placed by the buyer or to request further clarifications before commencing performance of the buyer’s order.
3.1 The price for the Products is exclusive of any taxes, import duties and/or other government levies (including VAT, taxes, excise taxes, and sales and use taxes) that may be assessed by any jurisdiction whether based on gross revenue, the delivery, possession or use of the Products, unless otherwise agreed between the parties.
3.2 The prices that will be invoiced by the Company are the prices as stipulated in the applicable price agreement (if any) or as shown on the applicable quotation valid on the date of the Company’s order confirmation.
3.3 Unless otherwise agreed, invoices shall be due and payable thirty (30) days as from the invoice date.
3.4 All amounts due to the Company shall be paid in full and the buyer shall not be entitled to assert any set-off or counterclaim against the Company, whether arising from a breach of the agreement, tort (including negligence), breach of statutory duty or any other matter whatsoever in order to justify withholding payment of any such amount in whole or in part.
3.5 If the Company has legitimate doubt regarding the creditworthiness and solvency of the buyer prior to delivery or collection (as the case may be) of the Products, the Company shall be entitled to require full or partial payment of the price prior to delivery or collection (as the case may be) or any provision of security for payment by the buyer in a form acceptable to the Company.
3.6 If the buyer fails to pay any sum due to the Company on the due date for any reason whatsoever, the Company shall be entitled to, at its sole discretion, terminate all outstanding offers, orders and/or agreement in accordance with Article 8 below and/or to withhold any further deliveries to the buyer until all payment obligations have been fulfilled and/or to claim damages from the buyer.
3.7 Any amount owed by the buyer to the Company that is not paid when due shall automatically and without prior notice give rise to the payment of (i) default interest at a rate of 12% per annum or, where applicable and if higher, at the rate provided for in the local implementation of the EU Late Payments Directive 2011/7 in the country where the relevant Company entity that acts as the seller for the relevant transaction as identified in the relevant purchase order and invoice has its registered office and (ii) a lump sum compensation equal to 15 % of the amount due with a minimum of EUR 500, and this without prejudice to the Company’s right to full reimbursement of legal collection costs. The Company explicitly reserves the right to prove additional damages and collection costs and to claim reimbursement therefor. Non-correct payment of any invoice, renders all other outstanding invoices immediately payable.
4.1 The Products will be delivered on the basis of FCA (Free Carrier – Incoterms 2020) at the Company’s warehouse where the relevant Products are stored, unless agreed otherwise between the parties in writing. Deliveries will be performed subject to the availability of the Products or parts thereof. Delivery dates or lead times are communicated with the best care and intentions.Exceeding the indicated delivery date(s) shall neither result in Company’s liability for any (direct or indirect) loss, damage or expense (including loss of profits and liability to third parties) or a price reduction, nor shall it result in termination of the agreement, unless expressly agreed otherwise in writing. The Company expressly reserves the right to make partial deliveries. The partial delivery of an order can in no circumstance justify the refusal to pay for the delivered Products.
4.2 Notwithstanding the delivery will occur on the basis of FCA as provided for in Article 4.1, the Company and the buyer can agree that the Company will provide for transport to an agreed location. In such case, risk will continue to transfer in accordance with the term FCA and buyer shall pay the relevant transport costs to Company.
4.3 The buyer is obliged to collect the ordered Products on the provided date of delivery (or on any other date as communicated by the Company to the buyer). In case the Products are not collected by the buyer on the date of delivery, the Company is entitled to store the Products at the sole expense and risk of the buyer. After a period of two (2) weeks following the delivery date, the Company entitled to (re-)sell the relevant Products without the need for further notice to buyer. In such case, the buyer shall compensate and indemnify the Company from and against any possible lower revenues, any extra costs incurred by the Company as a result of the buyer’s omission, and any other damages incurred by the Company.
5.1 Risk of loss, damage and theft of the Products transfers to the buyer upon delivery as provided for in Article 4.1.
5.2 The Products remain the property of the Company until complete and final payment of the price including any transportation charges, taxes and default interest and lump sum compensation as referenced in Article 3.7 by the buyer. In case the buyer resells or performs any other disposal acts with respect to Products that are subject to retention of title, the buyer will notify the third party that the Products are subject to retention of title from the Company.
6.1 Except as expressly stated in these GT&C, Company does not give any representations, warranties, conditions, terms or undertakings in relation to the Products or in relation to the performance of its obligations under these GT&C. Any representation, condition or warranty which might be implied or incorporated into these GT&C by reason of statute, common law or otherwise is excluded to the fullest extent permitted by law.
6.2 Without prejudice to any other provision of these GT&C, Company warrants that the Products comply with the Company’s specifications confirmed or referred to in the order confirmation and that they will be free from visible or hidden defects. Any warranties, conditions or terms with respect to fitness for a particular purpose will only be binding upon express written confirmation signed by an authorized representative of the Company. Any other warranties, conditions or terms are explicitly excluded. For Products that are not manufactured by the Company, the duration and scope of the warranty shall always be limited to the warranty the Company itself can exercise towards the manufacturer or supplier of the relevant Products. To the fullest extent permitted by law, the Company’s sole liability towards the buyer in case of non-conforming or defective Products shall be, at the Company’s choice, the replacement of the Products free of charge to the buyer or the issuance of a credit note to the buyer for the purchase price of the relevant Product, to the exclusion of any other remedies.
6.3 The buyer acknowledges that the use of the Products, their treatment and storage need to comply with certain requirements which fall under the sole responsibility of the buyer. The buyer shall make, and shall cause the end-users to make, its and their own assessment of whether the Product is fit for their intended purposes and of the measures to be implemented for proper and safe handling, processing storage and use of the Product in view of the intended purpose. The buyer shall ensure, and shall cause the end-users to ensure, that any proprietary rights and laws and regulations are observed when handling, processing storing or using the Product, on its own or as a component of another product. The buyer will indemnify and hold harmless the Company, its affiliated companies and its or their respective directors, shareholders or personnel from any claims by third parties, whether based on contract, tort or otherwise, arising from or related to the handling, processing storage or use of the Product.
6.4 The buyer shall inspect the Products for any defects or non-conformity upon delivery. In order to be admissible, any claims with respect to differences regarding the ordered and the delivered quantities must be notified to the Company in writing within two (2) working days as from delivery. Complaints with respect to the quality of and/or any hidden defects in the Products must be duly motivated and send by registered mail not later than (i) the expiry of a period of eight (8) calendar days as from the date on which the buyer could reasonably have discovered the defect and (ii) the best-before-date of the Products in question, whichever is earlier, failing which any and all claims in this respect are forfeited. The use or resale, even of a part of the delivered Products, implies the irrevocable approval and acceptance thereof by buyer.
6.5 The Company shall not be liable to the buyer under or in connection with these GT&C, or any agreement or order, for any, in each case whether direct or indirect:
6.5.1 loss of income;
6.5.2 loss of actual or anticipated profits;
6.5.3 loss of business;
6.5.4 loss of contracts;
6.5.5 loss of goodwill or reputation;
6.5.6 loss of anticipated savings;
6.5.7 loss of marketing commitments;
6.5.8 loss of data;
6.5.9 use of money, or use of Products;
6.5.10 interruption in use or availability of data;
6.5.11 stoppage of other work or impairment of other assets or any type of lucrum cessans; or
6.5.12 any consequential, indirect, special, punitive, or incidental damages, whether foreseeable or unforeseeable,
based on claims in contract, tort or otherwise arising out of or in connection with these GT&C or any separate contracts thereunder, the sale of Products, or performance of the deliverables resulting therefrom.
6.6 Without prejudice to any other provisions in these GT&C, in no event shall the aggregate liability to buyer or any other person which the Company may incur, whether foreseeable or unforeseeable, based on claims in contract, tort or otherwise arising out of or in connection with these GT&C, the sale of Products or the use of the Products, exceed, as applicable, (i) in case of Product defects or damages caused by defective Products, the total amount actually paid to the Company by buyer for the applicable Product that caused the damage, or (ii) for any other type of damages, the total amount paid to the Company by Buyer pursuant to these GT&C in the six (6) months prior to the event(s) giving rise to any claim for damages.
6.7 Nothing in these GT&C shall restrict or exclude Company’s liability for any liability which may not be lawfully excluded or limited.
6.8 The buyer agrees to cooperate and assist the Company in a reasonable manner in any recall actions in respect of Products and to follow any reasonable guidelines or instructions issued by the Company in connection therewith.
6.9 The parties confirm that the provisions on liability as set out in this Article 6 are indivisibly connected to the pricing and remuneration provisions in their agreement. Parties expressly acknowledge that without these provisions they would not have entered into an agreement under these GT&C with the same pricing and remuneration provisions.
Notwithstanding anything to the contrary in these GT&C, the buyer expressly agrees that, to the extent legally permissible, the buyer, any of its affiliated companies and/or its or their respective directors, shareholders or personnel will not and waives any right it or they may have, and the buyer will cause and procure its own contracting parties, their affiliates and/or its or their respective directors, shareholders or personnel not to and to waive any right they may have to, (a) initiate any claims on the basis of tort, non-contractual or extra-contractual liability against the Company, its affiliates or any of its or their auxiliaries or auxiliary persons (including, but not limited to, directors, managers and employed or contracted personnel or subcontractors), nor (b) hold the Company, its affiliates or any of its or their auxiliaries (including, but not limited to, directors, managers and employed or contracted personnel or subcontractors) liable on any such basis, in each case with regard to facts, acts or omissions that may potentially give rise to liability and that directly or indirectly arise out of or relate to the negotiation, conclusion, performance or termination of these GT&C’s, any individual contracts resulting therefrom or arising thereunder, any other transaction between the Company and the buyer that may be implemented in connection with these GT&C, the sale of products and/or the delivery of services, and/or the performance of deliverables resulting therefrom. The buyer shall indemnify and hold the Company, its affiliates and any of its or their auxiliaries (including, but not limited to, directors, managers and employed or contracted personnel or subcontractors) harmless from and against any such claims from (i) the buyer’s affiliated companies, (ii) the buyer’s own contracting parties and/or their affiliates, and/or (iii) its or their respective directors, shareholders, managers, employed or contracted personnel and subcontractors. The parties confirm that the provisions on liability as set out in this Article 7 are indivisibly connected to the pricing and remuneration provisions in their agreement. Parties expressly acknowledge that without these provisions they would not have entered into an agreement under these GT&C with the same pricing and remuneration provisions.
8.1 Notwithstanding anything to the contrary in these GT&C, the Company shall not be liable to the buyer if the performance of its obligations is being prevented, hindered, delayed or rendered more difficult, more costly or unprofitable by reason of circumstances or events beyond the Company’s reasonable control or inevitable including (but not limited to) Acts of God, war, riot, strike, lock-out, trade dispute or labor disturbance, accident, government imposed restrictions on use of energy, water or other resources, epidemics, pandemics, break-down of plant or machinery, fire, flood, storm, difficulty or increased expense in obtaining workmen, materials or transport or other circumstances affecting the supply of Products or of raw materials by Company’s normal source of supply or the manufacture of Products by normal means or the delivery of Products by Company’s normal route or means of delivery.
8.2 If changes in economic and/or business conditions beyond the control of a party and which could not have been reasonably foreseen and/or assumed by that party at the time of conclusion of an agreement hereunder occur, thereby placing an excessive burden on such party in the performance of its contractual obligations (other than the buyer’s payment obligations),then upon the written request of such party the parties shall promptly meet to consider whether hardship exists and, if so, what modifications, if any, to the terms of the contract are necessary to provide a fair and equitable method of mitigating, removing or avoiding any such hardship; such method to recognize the interests of both parties. Orders accepted during this period are executed on an ‘ad hoc’ basis, without any commitment for any future delivery and subject to a new agreement at short term between parties.
9.1 The Company shall be entitled, without prejudice to any other rights, to terminate any offer, order and/or agreement hereunder with immediate effect in case the buyer fails to properly fulfill any of its obligations thereunder as well as in case of bankruptcy, liquidation, insolvency or suspension of payments of or by the buyer. In such case, all sums due to the Company by the buyer shall immediately become due and payable and the buyer will be obliged to return any Products supplied by the Company within forty-eight (48) hours from receipt of written notice by the Company, failing which, the Company or its designated agents shall be entitled to enter the premises where the Products are located in order to re-take possession of the Products.
10.1 In these GT&C, “Trade Sanctions” means laws, regulations, decrees, ordinances, orders, demands, requests, rules or requirements of the European Union, any EU member state, the United Kingdom, the United Nations, Canada or the United States of America relating to trade sanctions, foreign trade controls, export controls, non-proliferation, anti-terrorism and similar laws applicable to the Company or buyer or their affiliates.
10.2 Buyer warrants that it will comply with and will not resell, reexport or transfer any of the Product to a geographic territory, an individual, entity, regime or organization if this would be in violation of, inconsistent with, or expose either party or any of its affiliates to measures under, any Trade Sanctions.
10.3 Notwithstanding anything to the contrary in these GT&C, neither party shall be obliged to perform any obligation, including without limitation an obligation to: (a) perform, deliver, accept, sell, purchase, pay or receive monies to, from, or through a person or entity; or (b) engage in any other acts, if this would be in violation of, inconsistent with, or expose such party or any of its affiliates to measures under any Trade Sanctions (“Prohibited Activity”). Where the performance by a party would be a Prohibited Activity, such party (the “Affected Party”) shall, as soon as reasonably practicable give written notice to the other party of its inability to perform. Once such notice has been given the Affected Party shall be entitled:
10.3.1 immediately to suspend the affected obligation (whether payment or performance) until such time as the Affected Party may lawfully discharge such obligation without such party or any of its affiliates being exposed to measures under any Trade Sanctions; and/or
10.3.2 where the inability to discharge the obligation without such party or any of its affiliates being exposed to measures under any Trade Sanctions continues (or is reasonably expected to continue) until the end of the contractual time for discharge thereof, to a full release from the affected obligation, provided that where the relevant obligation relates to payment for Products which have already been delivered, the affected payment obligation shall remain suspended (without prejudice to the accrual of any interest on an outstanding payment amount) until such time as the Affected Party may lawfully resume payment without such party or any of its affiliates being exposed to measures under any Trade Sanctions,
in each case without any liability whatsoever, including but not limited to any damages for breach of contract, penalties, costs, fees and expenses.
11.1 All issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of these GT&C (and any separate contract thereunder), or concerning any matters of extra-contractual and/or tort liability, if any, arising out of or in relation the these GT&C (and any separate contract thereunder) shall be governed by and construed in accordance with Belgian law, without giving effect to any other choice-of-law or conflict-of-laws rules or provisions (whether of such country or any other jurisdiction) that would cause the laws of any jurisdiction other than such country to be applicable. Any dispute, controversy or claim arising out of or relating to these GT&C (and any separate contract thereunder), including its interpretation, validity, enforcement, performance or termination, or to a breach hereof, or concerning any matters of extra-contractual and/or tort liability, if any, arising out of or in relation to these GT&C (and any separate contract thereunder), which cannot be resolved amicably, shall be submitted to the exclusive jurisdiction of the courts of Antwerp (Belgium), without prejudice to the right of Company to initiate proceedings before the courts of the place where the buyer has its registered office. As an exception to the foregoing, in case the selling entity as identified in the relevant purchase order, order confirmation and invoice is Firespray International Ltd, all issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of these GT&C (and any separate contract thereunder), or concerning any matters of extra-contractual and/or tort liability, if any, arising out of or in relation the these GT&C (and any separate contract thereunder) shall be governed by and construed in accordance with the laws of England and Wales, without giving effect to any other choice-of-law or conflict-of-laws rules or provisions (whether of such country or any other jurisdiction) that would cause the laws of any jurisdiction other than such country to be applicable, and any dispute, controversy or claim arising out of or relating to these GT&C (and any separate contract thereunder), including its interpretation, validity, enforcement, performance or termination, or to a breach hereof, or concerning any matters of extra-contractual and/or tort liability, if any, arising out of or in relation to these GT&C (and any separate contract thereunder), which cannot be resolved amicably, shall be submitted to the exclusive jurisdiction of the courts of London (England), without prejudice to the right of Company to initiate proceedings before the courts of the place where the buyer has its registered office. In all cases, the application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded from these GT&C and any transaction that may be implemented in connection with these GT&C.
11.2 A term or part of a term of these GT&C that is found to be illegal, invalid or unenforceable shall not affect the remaining terms or enforceable parts of the term in question, subject, however, to the operation of this clause not negating the essential commercial and other aspects of these GT&C (and any separate contract thereunder). Moreover, in this case, the parties shall amend the invalid, illegal or unenforceable provision(s) or any part thereof and/or agree on a new provision which embodies as closely as possible the purpose of the invalid, illegal or unenforceable provision(s).
11.3 No party shall be deemed to have waived any rights or remedies arising out of these GT&C, agreement or out of any default or breach hereunder unless such party executes the waiver in writing. Such waiver shall not be construed to constitute a waiver of any other rights or remedies.
11.4 Without prejudice to any other provision(s) of these GT&C, any and all claims whatsoever by the buyer arising out of or in connection with present GT&C or any offer, order or agreement will in any event become time-barred after expiration of one (1) year as from the date of delivery of the relevant Products.
11.5 A person who is not a party to these GT&C does not have any rights under these GT&C and cannot enforce any of its terms.
11.6 In case these GT&C’s are translated into any other language than English, such translation is made for illustrative purposes only. In case of discrepancies between language versions, the English language version of these GT&C’s will prevail.