ARTICLE 1               SCOPE

1.1. These general sale terms and conditions (hereinafter, the “Conditions”) apply to all offers, orders, sales, deliveries and signed agreements concluded by AUTENTIC BV, with its registered office at Belgium, 9600 Ronse, Charles de Gaullestraat 7 and company registration number 0743.868. 848 (hereinafter, the “Seller”).

1.2. In the event of any conflict between any terms and conditions of Buyer (as defined hereafter) and these Conditions , the latter shall prevail. The Parties expressly renounce all Buyer’s terms.

 

ARTICLE 2 DEFINITIONS

2.1. The following capitalised terms shall have the meaning set out below:

• Affiliate: means with respect to a Party, any company which directly or indirectly owns or controls at least fifty per cent (50 %) of the voting stock of such given company, or any other company at least fifty per cent (50 %) of whose voting stock is directly or indirectly owned or controlled by such owning or controlling company or by the given company;
• Article: means an article in these Conditions;
• Buyer: means the Party, as identified and defined the Order, which buys the Goods and related services from the Seller;
• Change of Control: means any change which occurs in the constitution, management, control or the financial or other circumstances of a Party which, in the opinion of the other Party, is materially detrimental to the latter’s interests, and in particular, but without limiting the generality of the foregoing if any interest in a Party is acquired by any entity engaged in any business which, in the opinion of the other Party, is deemed to compete with the business of the first Party or any Affiliate;
• Delivery Date: means the delivery date as agreed upon between the Parties and stipulated in the Purchase Order, based on the Incoterms® confirmed in the Purchase Order.
• Goods: mean the products, and associated documents, described in the Purchase Order, which Seller sells and supplies to Buyer;
• Hidden Defects: means a defect which Buyer could not reasonably have noticed upon the delivery of the Goods, or which only becomes noticeable upon use of the Goods;
• Immediate visible defects: means a defect which is immediately visible to Buyer upon the delivery of the Goods;
• Intellectual Property Rights: mean present and future (where applicable) copyrights and related rights, works of authorship, rights in software, trademarks and trade names, design rights, models, know-how, inventions, patent rights, trade secrets, database rights as well as the right to apply for these rights anywhere in the world.
• Offer: means any written proposal, via e-mail or any other digital or physical medium, made by Seller to sell Goods to Buyer;
• Purchase Order: means any written request made by Buyer via e-mail or any other digital or physical medium, to purchase Goods from Seller;
• Party: means Seller or Buyer;
• Price: means the price of the Goods as stipulated in the Purchase Order;
• Visible Defects: means a defect which becomes observable after a detailed examination by Buyer;
• Working Day: means any day other than a Saturday, Sunday or a Belgian public holiday;

 

ARTICLE 3              OFFERS, ORDERS AND ACCEPTANCE

3.1. An agreement between Seller and Buyer shall come in place in one of the following three exhaustive ways:

• When Buyer has communicated an unconditional confirmation of the Offer within the validity period specified in the Offer; or
• Where there is no Offer, following the express and written acceptance by Seller of the Purchase Order; or
• When the Purchase Order is executed by Seller.

3.2. Each Purchase Order is considered to be concluded at the place of the registered office of Seller upon acceptance, regardless of the delivery location of the Goods specified in the Purchase Order. Any deviation therefrom must be expressly accepted in writing by Seller.

3.3. Every Purchase Order Seller shall be deemed to be executed at the address of the registered office of Seller, regardless of where Seller provides the Goods.

 

ARTICLE 4               DELIVERY AND SHIPMENT OF GOODS

4.1. Seller shall determine and communicate the Delivery Date prior to delivery. Delivery Dates are considered non-binding and indicative. Seller is not held to any fixed Delivery Dates, unless explicitly stated as binding by the Seller in writing.

4.2. If Seller cannot deliver on the Delivery Date, Seller will notify Buyer orally and/or in writing as soon as it has knowledge of a delay of Delivery Date. The Parties will determine a new delivery date or period. This new Delivery Date shall be deemed to be the agreed delivery date or period.

4.3. Unless explicitly agreed otherwise by the Parties, Expiry of the predetermined Delivery Date, if not due to bad faith, fraud or gross negligence on Seller’s part, shall in no event entitle the Buyer to cancel the Purchase Order or to receive any compensation.

4.4. If a delivery delay is caused by any circumstance of Force Majeure as defined in Article 13, or by any act or omission by Buyer, the delivery time shall be extended by such period as is reasonable under the circumstances. This also applies when a Delivery Date which has been extended under this paragraph cannot be adhered to for the same reason.

4.5. Delivery shall take place in accordance with the Incoterms® as specified in the Offer and/or corresponding Purchase Order, in accordance with the latest version of Incoterms® is applicable.

4.6. If the customer fails to collect the goods or refuses to accept delivery as agreed at the time of placing the order, a storage fee of € 50 per pallet per month will be charged.

 

ARTICLE 5               TRANSFER OF TITLE AND RISK OF LOSS

5.1. Unless otherwise agreed upon, the title of the Goods delivered by Seller to Buyer in accordance with these Conditions shall pass from Seller to Buyer upon the delivery of the Goods by Seller and if the Price of the Goods has been fully paid.

5.2. As long as the ownership of the Goods has not been transferred to Buyer, Buyer may not pledge them or grant third parties any other right thereto, except within the normal course of his business.

5.3. If Buyer is in default to fulfil its payment obligations or is experiencing payment difficulties or threatens to experience payment difficulties, Seller shall be entitled, both vis-à-vis Buyer and vis-à-vis any third party, to assert its ownership rights and demand the return of the Goods without having to take legal action in this regard.

5.4. Unless otherwise agreed upon, the risk of loss or damage to all Goods shall pass from Seller to Buyer in accordance with the Incoterms® specified in the Offer and/or Purchase Order.

5.5. In the exceptional case of owned Stock or prepositioned Stock held at Seller’s warehouse at the explicit request of the Buyer, transfer of ownership shall take place at the time of full payment of the relevant invoice(s).. Unless agreed otherwise, it is Buyer’s responsibility to insure while they are stored at the Seller’s warehouse.

 

ARTICLE 6               REPRESENTATIONS AND WARRANTIES

6.1. Seller guarantees that the Goods, that are to be delivered in accordance with the Purchase Order, meet the specifications and other requirements referred to in the Purchase Order.

6.2. Seller makes no representations or warranties whatsoever regarding the Goods, express or implied, statutory or otherwise, including warranties of title, non-infringement, validity, enforceability or fitness for a particular purpose, except as expressly granted under these Conditions.

 

ARTICLE 7               COMPLAINTS

7.1. Buyer must immediately inspect the Goods upon delivery in accordance with all procedures customary in the industry, unless another timing has been agreed between the Parties in writing and prior to delivery. Immediate Visible Defects must immediately be reported by Buyer on the delivery note and notified in writing directly to Seller within a period of forty-eight (48) hours.

7.2. Complaints regarding Visible Defects which become observable after this detailed examination must be notified to Seller in writing within a period of five (5) Working Days after the delivery of the Goods. After the expiration of the aforementioned period, Buyer will be deemed to have accepted the Goods.

7.3. Complaints regarding Hidden Defects must be notified by Buyer to Seller in writing by registered letter without delay, and at the latest within a period of five (5) Working Days after Buyer has become aware or could reasonably have become aware of them. Additionally, any complaints regarding Hidden Defects must be made within two (2) years of the date of delivery. Failure to notify within these periods will result in the forfeiture of any claims related to such Hidden Defects.

7.4. The complaints must include a detailed description of the alleged defect and photographic evidence to support the claim. Failure to submit a complaint within the specified timeframe or to provide sufficient detail will be considered as invalid. The Seller may request the Buyer to conduct an independent investigation of the alleged defects at his own expense.

7.5. Seller assures that every claim will be assessed with due diligence. Seller shall assess the complaint without undue delay, but at the latest within thirty (30) Working Days, excluding any time necessary for a professional assessment of the defect.

7.6. If Seller considers the claim submitted by Buyer to be valid, Seller shall notify Buyer whether the defective Goods will be repaired or replaced with compliant goods at Seller’s exclusive expense. This will cover all associated costs including removal, reinstallation, access, shipping and labor costs. The defective and/or non-compliant Goods will be repaired or replaced within a period of time agreed upon between the Parties.

7.7. Complaints regarding a part of the delivery of the Goods does not authorise the Buyer to reject the entire delivery.

7.8. Expressing a complaint does not suspend Buyer’s payment obligation, regardless of any justification of a complaint

7.9. Any possible claim for compensation under these general terms and conditions expires, if and as soon as one (1) year has passed since the delivery of the Goods in question, without the claim having been submitted in writing by registered letter to Seller.

 

ARTICLE 8               PRICING, INVOICING AND PAYMENT TERMS

8.1. The Prices are expressed in Euro (€), unless otherwise stated in the Purchase Order.

8.2. Unless otherwise stated, all Prices are exclusive of Value Added Tax (if any) as well as exclusive of any other taxes and additional expenses. These additional expenses include but are not limited to transportation costs, costs of packaging, costs of quality control, import taxes, government and/or other public levies, as well as any other fees, unless otherwise agreed in writing, and shall be borne by Buyer, unless otherwise specified in the applicable Incoterms®.

8.3. All bank charges and transfer costs related to the transaction are the responsibility of the customer.

8.4. The Prices include only what is described in the Offer and/or Purchase Order. If the Buyer requests additional Goods and/or services , not provided for in the Offer and/or Purchase Order, these will be additionally invoiced by Seller to Buyer.

8.5. Without prejudice to Article 9.3(g), if after the conclusion of the Purchase Order in accordance with Article 3.1., but before delivery of the Goods in accordance with Article 4.5, one or more of the cost-determining factors of the Price increase in a substantial and unforeseen way with more than five percent (5%), Seller shall be entitled to adjust its Price accordingly provided that Seller provides Buyer with sufficient information. Seller shall notify Buyer of the Price adjustment as soon as possible.

8.6. Unless agreed otherwise in the Purchase Order and specified in the invoice, Buyer shall pay the invoice within thirty (30) days from the date of invoice.

8.7. All payments shall be made at the office of Seller or by deposit or transfer to a bank account to be designated by Seller.

8.8. Payment shall be made in Euros (€) unless otherwise indicated on the invoice. In the latter case Seller has the right to pass on exchange rate differences to Buyer.

8.9. Invoices may only be validly protested within ten (10) Working Days of the invoice date, by registered letter and/or registered e-mail containing a detailed justification. In the absence of protest within the predetermined period, Buyer is presumed to have accepted the invoice.

8.10. In the event of failure to pay after first reminder an interest on the overdue amount will be charged at the EURIBOR rate on 3 months increased by a fixed percentage of eight % (8%). This interest shall be payable by operation of law and without notice of default from the due date of the invoice. In addition, a fixed compensation of ten percent (10%) on the principal amount due with a minimum of €50,00 excluding VAT, shall be payable by operation of law and without notice of default, without prejudice to Seller’s right to prove higher damages. This does not include any judicial interest and court costs.

8.11. Seller shall be entitled to suspend the performance of its obligations in the event of delayed payment on the part of Buyer, or if Buyer has otherwise failed in any way to perform its obligations to Seller or the non-performance thereof is at risk. Buyer is required to pay all damages suffered by Seller as a result. Seller shall not be liable for any damage to Buyer as a result of not executing the Purchase Orders.

 

ARTICLE 9               CANCELLATION

9.1. Seller has the right to cancel or modify the Order without charge whenever ***.

9.2. Once a Purchase Order has been concluded in accordance with Article 3.1, Buyer is not entitled to cancel or modify the Purchase Order, in whole or in part, without the prior written consent of Seller. Seller retains the right to refuse its approval.

9.3. Contrary to Article 9.1. and 9.2., both Parties shall be entitled to cancel any Purchase Order, in whole or in part, without any obligation to pay a cancellation fee or other fee or penalty, in the following events:

1. if the other Party breaches these terms and conditions and fails to remedy such breach within thirty (30) calendar days of receipt of written notice from the first Party specifying the breach and requiring it to be remedied; or
2. if the other Party materially breaches these terms and conditions and the breach cannot be rectified; or
3. if a petition or proceeding, voluntary or involuntary, for relief under bankruptcy, dissolution, receivership, liquidation or similar lawsuit has been filed or commenced by or against the other Party, or if a trustee, custodian, receiver or similar officer is appointed to take charge of all or part of the other Party’s business, or if the other Party ceases to do business at any time for thirty (30) consecutive days; or
4. if the other Party is voluntary or compulsorily wound up as a result of a merger, split or similar procedure, with exception of the procedures forming part of a restructuring of the group of which the other Party forms a part; or
5. in so far and to the extent allowed by mandatory law, the other Party becomes insolvent or is otherwise unable to pay its debts as and when they become due; or
6. in case Buyer is subject to a substantial and/or critical Change of Control;
7. in case one or more of the cost-determining factors of the Price increase in a substantial and unforeseen way with more than five percent (5%)

 

ARTICLE 10             TERM AND TERMINATION

10.1. These Conditions  will take effect as from the date of acceptance by Buyer and will remain in force until the completion of the transaction, including delivery and payment, unless terminated earlier in accordance with the terms specified in these Conditions.

10.2. Unless otherwise explicitly stated in these Conditions, rights and obligations which, by their nature, are intended to continue to apply after the end of these Conditions shall remain in full force after the (early) termination, for whatsoever reason, of this Agreement including but not limited to Articles 7; 8; 13; 14; 15; 16; 17 and 26.

10.3. If any Order is pending at the time of the termination or expiration of the Agreement, these Conditions shall continue to apply to that Order

 

ARTICLE 11                LIABILITY

11.1 The Parties can only be held liable for damages resulting from its wilful misconduct, gross negligence or fraud. All liability regarding non-timely delivery by Seller is hereby excluded.

11.2. The Parties shall not be liable for damages caused by Force Majeure as referred to in Article 12.

11.3. If a Party’s liability can still be retained, such liability shall in any event be limited to no more than 10% (ten percent) of the amount of the value of the Purchase Order, and in any event to that part of the Purchase Order to which the liability relates. If the damage is covered by insurance, the liability of the liable Party shall in any event be limited to the amount actually paid out by its insurer.

11.4. In the event that a Party should be liable to pay any damages to the other Party under the aforementioned clause, the liable Party shall be entitled to pay such damages to the other Party at its own discretion in the form of a credit note, a discount on a subsequent delivery or a pay-out. Buyer may not deduct damage compensation from any outstanding and due amounts and buyer is not entitled not to pay the invoice amount in due time.

11.5. Both Parties are obliged to limit any damage as much as possible.

 

ARTICLE 12             INTELLECTUAL PROPERTY RIGHTS

12.1. An agreement between Seller and Buyer does not include any transfer of Intellectual Property Rights and know-how from Seller to Buyer.

 

ARTICLE 13             FORCE MAJEURE

13.1. Neither Party shall be responsible for a failure to perform its obligations under these Conditions if such failure is due to force majeure, including, but not limited to acts of terrorism, or any other cause outside the reasonable control of that Party, and occurring without its fault or negligence. For the avoidance of doubt: transport problems, pandemics, strikes, employee shortage, raw materials shortage, mechanical breakdown, will considered force majeure.

13.2. The Party whose performance has been so interrupted shall give the other Party written notice of the interruption and cause thereof, and shall use every reasonable means to resume full performance as soon as possible. The other Party is entitled to cancel the Purchase Order at no cost if a force majeure event continues or is likely to continue beyond thirty (30) days.

 

ARTICLE 14             NOTICES

14.1. Except as specifically provided otherwise, all written notices required or permitted under these terms and conditions may be made by e-mail. This does not apply in cases where these terms and conditions expressly require notification to be made by registered letter.

 

ARTICLE 15             ASSIGNMENT AND NOTICE OF CHANGE

15.1. Buyer shall not have the right to sell, assign or transfer the Purchase Order and/or any rights or obligations under this PurchaseOrder, in whole or in part, to a third party without the prior written consent of Seller. If consent is granted, any such assignment by Buyer will not (a) increase or alter Seller’s obligations, (b) diminish the rights of Seller or (c) release Buyer of any of its legal obligations under the Order.

15.2. Seller shall have the right to assign the Purchase Order and/or any rights or obligations under this Purchase Order, to any party, including Seller’s affiliates upon giving prior written notice to Buyer. Parties agree that Buyer’s approval shall not be required for such assignment.

 

ARTICLE 16             AMENDMENTS

16.1. Any modification to these Conditions shall be subject to a written agreement, duly undersigned by the Parties.

 

ARTICLE 17             DIVISIBILITY

17.1. If any provision of these Conditions is held to be invalid or unenforceable in whole or in part, the validity of the remaining provisions and the remainder of the affected provisions shall remain in full force and effect. There shall be substituted for any such provision a suitable provision which, as far as is legally possible, comes nearest to what the Parties hereto desired or would have desired according to the sense and purpose of these Conditions, had they considered the point when concluding these Conditions.

 

ARTICLE 18             WAIVER

18.1. None of the terms or conditions shall be deemed or construed to have been waived by either of the Parties, unless such waiver is set forth in a written instrument properly signed by such Party.

 

ARTICLE 19             APPLICABLE LAW AND COMPETENT COURTS

19.1. Belgian law is applicable to these terms and conditions and all Purchase Orders placed under these terms and conditions.

19.2. All disputes relating to or arising from these terms and conditions and the Purchase Orders to which these terms and conditions apply, shall be governed by and construed exclusively in accordance with the laws of Belgium, exclusive of conflict of law rules and choice of law principles which would deem otherwise. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (1980) is explicitly excluded.

19.3. Any dispute related to or arising from these terms and conditions shall be submitted to the exclusive jurisdiction of the competent courts in Ghent, Belgium.

 

ARTICLE 1               SCOPE

1.1. These general purchase terms and conditions (hereinafter, the “Conditions”) apply to all orders issued by and/or on behalf of AUTENTIC BV, with its registered office at Belgium, 9600 Ronse, Charles de Gaullestraat 7 and company registration number 0743.868. 848 (hereinafter, “Buyer”).

1.2. In the event of any conflict between any terms and conditions of Supplier (as defined hereafter) and these Conditions, the latter shall prevail. The Parties expressly renounce all Supplier’s terms.

 

ARTICLE 2               DEFINITIONS

2.1. The following capitalised terms shall have the meaning set out below:

• Affiliate: means with respect to a Party, any company which directly or indirectly owns or controls at least fifty per cent (50 %) of the voting stock of such given company, or any other company at least fifty per cent (50 %) of whose voting stock is directly or indirectly owned or controlled by such owning or controlling company or by the given company;
• Article: means an article in these Conditions;
• Change of Control: means any change which occurs in the constitution, management, control or the financial or other circumstances of a Party which, in the opinion of the other Party, is materially detrimental to the latter’s interests, and in particular, but without limiting the generality of the foregoing if any interest in a Party is acquired by any entity engaged in any business which, in the opinion of the other Party, is deemed to compete with the business of the first Party or any Affiliate;
• Delivery Date: means the delivery date as agreed upon between the Parties and stipulated in the Purchase Order, based on the Incoterms® confirmed in the Purchase Order;
• Goods: mean the products, and associated documents and services, described in the Purchase Order, which Supplier shall supply to Buyer;
• Intellectual Property Rights: mean present and future (where applicable) copyrights and related rights, works of authorship, rights in software, trademarks and trade names, design rights, models, know-how, inventions, patent rights, trade secrets, database rights as well as the right to apply for these rights anywhere in the world;
• Party: means Supplier or Buyer;
• Price: means the price of the Goods as stipulated in the Purchase Order;
• Purchase Order: means any written purchase order, via e-mail or any other digital or physical medium, issued by Buyer to Supplier;
• Supplier: means the Party, as identified and defined in the Purchase Order, which supplies the Goods and related services ordered by Buyer;
• Working Day: means any day other than a Saturday, Sunday or a Belgian public holiday;

 

ARTICLE 3               ACCEPTANCE OF THE PURCHASE ORDER

3.1. Purchase Orders are binding for the Parties from the moment it is placed by the Buyer, unless Supplier expressly refuses the Purchase Order of requests to modify the placed Purchase Order within a period of  (5) Working Days from the receipt of the Purchase Order by Supplier.

3.2. Any activities performed or Goods supplied by Supplier without a Purchase Order from Buyer shall be at the sole risk and expense of Supplier.

 

ARTICLE 4               DELIVERY DATE AND DELAY

4.1. Delivery terms shall be strictly applied. Supplier acknowledges and agrees that meeting the Delivery Date is crucial for Buyer.

4.2. If Supplier fails to deliver the Goods and/or a part hereof at the Delivery Date, Buyer is entitled to set a new binding date for the delivery at his own discretion, without prejudice to the other remedies provided for in these Conditions including but not limited to Articles 8.6, 8.7 and 11.6.

4.3. Supplier will immediately notify Buyer in writing as soon as he anticipates or becomes aware of a delay in Delivery Date and communicate its approximate duration, specify the reasons for the delay and the estimated updated delivery schedule. Supplier will undertake all reasonable measures to mitigate the delays and the consequences thereof.

4.4. If a delivery delay is caused by any circumstance of “force majeure” as defined in Article 16 of these Conditions or by any act or omission by Buyer, the delivery time shall be extended by such period as is reasonable under the circumstances. This also applies when a delivery time which has been extended under this paragraph cannot be adhered to for the same reason.

 

ARTICLE 5               DELIVERY AND SHIPMENT OF GOODS

5.1. Prior to shipment, Supplier will carefully inspect and test the Goods for conformance to the requirements of the Purchase Order. These inspections should not impact the Delivery Dates as specified in the Purchase Order, unless the Buyer expressly agreed in writing.

5.2. Delivery shall take place in accordance with the Incoterms® as mentioned in the Purchase Order. In case no Incoterms® are mentioned in the Purchase Order or the Incoterms® are ambiguous, the Supplier will seek clarification and/or confirmation from the Buyer on the applicable Incoterms® prior to any delivery.

5.3. If deliveries do not contain the volumes specified in the Purchase Orders, Supplier shall inform Buyer at the earliest possible moment, and supply, at its own cost, the remaining volumes to Buyer at the date specified by Buyer. Additional remedies available to Buyer, including but not limited to the remedies outlined in Articles 8.6, 8.7 and 11.6, will apply.

5.4. Supplier shall provide Buyer, in a timely manner, with all necessary information and documentation in its possession or control relating to the Goods supplied to Buyer and required in order to comply with Purchase Order instructions, applicable customs, product marking, country of origin and any other legal requirement. Supplier shall bear all costs and risks associated with the provision of these information and documentation.

5.5. Supplier is responsible for properly and adequately packing the Goods to ensure safe transportation and delivery to the designated destination. In the event of loss or damage during transport, Supplier shall immediately replace the Goods at no cost to Buyer. Buyer may provide specific packaging instructions for Supplier on the Purchase Order. These instructions will be considered binding for Supplier, unless otherwise agreed by the Parties in writing.

5.6. Supplier is responsible for properly and adequately labelling individual Goods, secondary and tertiary packaging as per instructions provided by the buyer in the Purchase Order and/or separate instructions provided in writing.

5.7. The costs and risks associated with loading and shipping the Goods shall be borne by the Parties in accordance with the agreed Incoterms®. If no incoterms® are applicable or in case of doubt, the Supplier shall bear all costs and risks associated with loading and shipping the goods, including but not limited to transportation, insurance, custom duties, and taxes.

 

ARTICLE 6               TRANSFER OF TITLE AND RISK OF LOSS

6.1. Unless otherwise agreed upon in the Purchase Order, the title of the Goods delivered by Supplier to Buyer in accordance with these Conditions shall pass from Supplier to Buyer upon the delivery of the Goods by Supplier.

6.2. The risk of loss or damage to all Goods shall pass in accordance with the agreed Incoterms®. If no incoterms® are applicable or in case of doubt, the The risk of loss or damage to all Goods shall pass from Supplier to Buyer upon the delivery of the Goods to Buyer.

 

ARTICLE 7               REPRESENTATIONS AND WARRANTIES FROM SUPPLIER

7.1. Supplier warrants to Buyer that the Goods:

(a) conform to the specifications and other requirements referred to in the Purchase Order or provided by Buyer to Supplier; and

(b) are unused, fit and safe for consumer use and suitable for Buyer’s intended use which Supplier acknowledges it is aware of; and

(c) are free from defects, including but not limited to faults in design, material and manufacturing; and

(d) do not infringe any rights of third parties, including Intellectual Property Rights; and

(e) conform with all applicable laws, ordinances, codes and regulations in the country of manufacture and in the countries where the Goods are delivered, used or sold by Buyer.  This includes, but is not limited to, adherence to import and export regulations, as well as health, safety and environmental laws, treaties ordinances, codes and regulations of any jurisdiction (whether international, country, region, state, province, city or local) where the Purchase Order may be executed. Supplier is responsible for ensuring that all its actions, products, and services meet the legal requirements of the jurisdictions in which they are provided and that it holds all the necessary authorisations and permits imposed by the applicable law within the country of manufacturing, delivery, use or sale; and

(f) are free and clear from any and all liens, restrictions, reservations, security interests and encumbrances.

7.2. Supplier will provide to Buyer a warranty of 24 months on the Goods as of delivery of the Goods to the end-customer in accordance with EU Directive 2019/771 on certain aspects concerning contracts for the sale of goods. This warranty will also apply to Goods that are delivered to end-customers outside of the EU.

7.3. Supplier ensures that the Goods are rigorously tested and comply with all relevant product safety standards and/or any mandatory regulations of the country of its manufacture and the importing country. Where applicable, all Goods must be supplied with the applicable operation, installation, maintenance and safety manuals, along with properly displayed safety alert labels on the Goods in accordance with applicable local and international regulations, customs and/or standards. Supplier shall be held liable for any deficiencies or shortages of safety devices in the Goods, including in their manuals or documentation. Buyer can request Supplier to provide the relevant manuals and product information in specific languages as per end-customer requirements.

7.4. Supplier acknowledges and agrees that it is solely responsible for any and all documentation required to comply with the exportation and importation laws and regulations in order to ship the Goods to the place of delivery.

7.5. On request of Buyer, Supplier will provide Buyer with all requested information, including but not limited to drawings, instructions, descriptions, calculations, control certificates, formulas, certificates of conformity or analysis, customs clearance documentation, information about origin, composition, manufacture, kind and quality of the Goods, serial and batch numbers.

7.6. Supplier shall, upon Buyer’s written request, provide any certification of compliance required by any jurisdiction (whether international, country, region, state, province, city, or local) where the Purchase Order may be performed and any certification required by Buyer as specified in the Purchase Order

 

ARTICLE 8               CONFORMING GOODS AND ACCEPTANCE

8.1. Any deviation between a Purchase Order and the delivered Goods shall be considered as non-compliance.

8.2. Buyer shall be deemed having accepted the Goods unless it will have provided notice to Supplier within 14 Working Days after receipt of the Goods demonstrating that the Goods have visible defects, that the quality, specifications or other requirements have not been complied with, or that the Goods are subject any quantity deviations from the Purchase Order. The signature by Buyer on a delivery note and/or the payment of an invoice shall never imply acceptance of the conditions of the Goods.

8.3. In addition to Article 8.2, Buyer reserves all rights to reject any Goods, in whole or in part, even after 14 Working Days after receipt of the Goods, upon discovery of a defect, which Buyer could not reasonably have noticed upon the delivery or which only become noticeable upon use of the Goods. In that case, Buyer will give notice to Supplier of the deficiency within fourteen (14) Working Days after its discovery of the defect.

8.4. In case of defective and/or non-compliant Goods, Supplier shall upon written request of Buyer promptly replace the defective goods with compliant Goods at Supplier’s exclusive expense (including removal, reinstallation, access, shipping and labor costs) and within a maximum period of thirty (30) Working Days after the notice of Supplier, unless the Parties agreed to different timings. If Supplier fails to replace the defective Goods within this timeframe, Buyer may replace the Goods via third parties and charge all related costs to Supplier, without Buyer waiving any other rights or remedies it may have under the Purchase Order.

8.5. Any deficiency which becomes apparent within two (2) years of time when the Goods were sold to the end-consumer, whether directly or indirectly by Buyer, shall be presumed to have existed at the time when the Goods were delivered.

8.6. In addition to Article 8.4, Buyer reserves the right to, instead of a replacement, request Supplier to remove the defective or non-compliant Goods at Supplier’s expense within thirty (30) Working Days after notice of Buyer. Any portion of the Price paid will be refunded in full.

8.7. Failure by Supplier to meet the quality requirements, a stipulated volume, delivery date or time or if the delivered Goods are non-compliant, shall result in Supplier being liable to Buyer for the payment of (i) any costs (including but not limited to costs of transportation, removal, storage, destruction; delivery of compliant Goods; interruption of production lines; delivery delays for Buyer’s suppliers or clients; costs of a recall), damages, penalties or liquidated damages that may be imposed upon Buyer by its suppliers, customers or contractors as a result of such failure, and (ii) a payment in the amount of two percent (2%) of the total Price of the relevant Purchase Order for each working day of delay, up to a maximum of ten percent (10%) of such Price. These liabilities are in addition to any other rights of Buyer under applicable laws and/or these Conditions. Neither an attributable breach, nor any demand for payment or default notice shall be required for Supplier to be liable for any payment contemplated in (ii).

 

ARTICLE 9               PRICING, INVOICING AND PAYMENT TERMS

9.1. Prices shall be fixed for the entire period of performance in the currency determined in the Purchase Order.

9.2. Unless otherwise stated in the Purchase Order, all prices are exclusive of Value Added Tax (if any). Any bank charges incurred in relation to the payment of Supplier’s invoice by Buyer shall be for the account of Supplier.

9.3. The Price may in no way be increased without prior written consent of Buyer.

9.4. Unless specified otherwise, Buyer shall pay the invoice within the period specified in the Purchase Order.

9.5. Buyer has the right to deduct any outstanding balance along Supplier’s side from the Price due, whether arising under the Purchase Order to which the Price relates or not.

9.6. In all of Supplier’s invoices, the relevant Purchase Order number must be quoted along with the information required on the advice note (if any). Buyer is entitled to reject all invoices that do not conform to these requirements.

9.7. Supplier will issue its invoice at the moment that the delivery of the Goods has been fully completed in accordance with the Incoterms® of the Purchase Order, unless otherwise agreed by the Parties and expressly confirmed in the payment terms of the Purchase Order.

9.8. In the event of an insufficient delivery, delayed delivery or non-compliant delivery, for a reason directly attributable to Supplier, the time limits for payment shall be automatically extended and shall run from the conforming delivery.

 

ARTICLE 10             SUPPLIER’S FURTHER OBLIGATIONS

10.1. Supplier agrees to conduct its business and perform its obligations under these Conditions with the highest professional standards, maintaining integrity, honesty, and transparency in all dealings and to properly advise Buyer at its reasonable request.

10.2. Supplier shall advise Buyer immediately if there is any shortage in the supply of Goods or material necessary to manufacture the Goods.

10.3. Prior to the delivery of the Goods, if the Parties agreed, Supplier will provide Buyer with samples and analyses of the quality, and/or the content of harmful substances, including analyses of the related materials. The Goods can only be shipped and/or delivered if the samples and analyses are compliant with the specifications. Supplier shall retain a sufficient number of Goods samples from each batch and/or manufacturing process to ensure compliance with its obligations herein can be demonstrated. However, this does not relieve Supplier of its responsibility to provide Goods in compliance with the provisions of the Purchase Order.

10.4. Supplier is fully responsible for the personnel performing the Purchase Order, whether hired or employed, temporary or permanent, and warrants that such personnel have all the qualifications, skills and experience that are necessary to perform in accordance with the terms of the Purchase Order. Supplier’s personnel performing under the Purchase Order shall remain in all circumstances under Supplier’s responsibility. Supplier assumes all employer-related social and fiscal responsibilities for its paid personnel and shall exercise all management prerogatives over such personnel (rating, promotion, discipline, etc.). Supplier shall ensure that all personnel delivering goods or performing under the Purchase Order for the benefit of Buyer shall fully comply with all applicable laws, company rules and security procedures at the premises where the Goods are delivered or the services are performed.

10.5. In performing its obligations under the Purchase Order, Supplier shall and undertakes that each Affiliate and/or member of its economic group and/or any subcontractors, sub-vendors or sub-suppliers comply with all Buyer’s mandatory policies provided to Supplier and incorporated by reference into the Purchase Order. The mandatory policies shall include, but are not be limited to, Supplier’s Business Ethics Code, Vendor Manual (if applicable) and any other mandatory policies Buyer decides to include with the Purchase Order.

 

ARTICLE 11             CANCELLATION OF PURCHASE ORDER

11.1. Buyer is at all times entitled to cancel or modify a Purchase Order in whole or in part, in writing, until Supplier has accepted the Purchase Order, without any obligation to pay a cancellation fee of other fee or penalty.

11.2. Once a Purchase Order has been accepted by Supplier, Buyer shall still be entitled to, at any time, cancel or modify the Purchase Order in whole or in part, in writing, provided that Buyer reimburses Supplier for the costs incurred as a result of such cancellation or modification, without any obligation to pay a cancellation fee of other fee or penalty. Buyer will only reimburse the costs which the Supplier can substantiate with auditable documentation proving both the amount and its relation to the cancellation of the Purchase Order in question. Such reimbursement shall be based on and be limited to the part already performed by Supplier at the time of cancellation or modification and its corresponding part in Price, with a maximum of thirty percent (30%) of the total Price mentioned in the Purchase Order. Supplier will never be entitled to any lost revenue, lost business opportunity or any incidental, indirect, economic and/or consequential damages because of cancellation.

11.3. When receiving a cancellation notice by Buyer, Supplier will immediately discontinue all work pertaining to the Purchase Order, including but not limited to placing additional purchase orders or making any additional commitment, and cancelling forthwith any existing purchase orders and commitments on the best possible terms.

11.4. Once a Purchase Order has been accepted by Supplier, Supplier is not entitled to cancel the Purchase Order without the prior written consent of Buyer. Any attempt by Supplier to cancel the Purchase Order without such consent shall constitute a material breach of these Conditions.

11.5. Contrary to Articles 11.2 and 11.4, both Parties shall be entitled to cancel any pending Purchase Order in whole or in part, without any obligation to pay a cancellation fee of other fee or penalty, in the following events:

a) the other Party breaches these Conditions and fails to remedy such breach within thirty (30) calendar days of receipt of written notice from the first Party specifying the breach and requiring it to be remedied; or

b) the other Party breaches these Conditions and the breach cannot be rectified;

c) exceptional circumstances would prevent the business, professional or services relationship between Parties to exist and survive; or

d) a petition or proceeding, voluntary or involuntary, for relief under bankruptcy, dissolution, receivership, liquidation or similar lawsuit has been filed or commenced by or against the other Party, or if a trustee, custodian, receiver or similar officer is appointed to take charge of all or part of the other Party’s business, or if the other Party ceases to do business at any time for thirty (30) consecutive days; or

e) the other Party is voluntary or compulsorily wound up as a result of a merger, split or similar procedure, with exception of the procedures forming part of a restructuring of the group of which the other Party forms a part; or

f) in so far and to the extent allowed by mandatory law, the other Party becomes insolvent or is otherwise unable to pay its debts as and when they become due; or

g) in case Supplier is subject to a substantial and/or critical Change of Control.

11.6. Contrary to Articles 11.2 and 11.4 and in addition to Article 11.5, failure by Supplier to meet the quality requirements, a stipulated volume, delivery date or time, or if the delivered Goods are non-compliant, entitles Buyer to cancel the relevant Purchase Order, in whole or in part without any obligation to pay a cancellation fee or other fee or penalty.

11.7. Upon cancellation by Buyer as a result of Supplier’s default, Supplier will be liable and will immediately reimburse Buyer for all costs of any nature in excess of the Price which may be incurred by Buyer to effect completion of performance of the Purchase Order by a third party. In addition hereto, Supplier shall be liable for any costs incurred by Buyer directly related to the cancellation, including but not limited to restocking fees, transportation costs, and additional expenses reasonably incurred by Buyer as a result of the cancellation.

 

ARTICLE 12             TERM AND TERMINATION

12.1. This Agreement will take effect as from the date of acceptance by Supplier and will remain in force until the completion of the transaction, including delivery and payment, unless terminated earlier in accordance with the terms specified in these Conditions.

12.2. Unless otherwise explicitly stated in this Agreement, rights and obligations which, by their nature, are intended to continue to apply after the end of this Agreement shall remain in full force after the (early) termination, for whatsoever reason, of this Agreement including but not limited to Articles 7; 8; 13; 14; 15; 16; and 25.

12.3. If any Purchase Order is pending at the time of the termination or expiration of the Agreement, this Agreement shall continue to apply to that Purchase Order.

 

ARTICLE 13             PRODUCT LIABILITY

13.1. It is agreed that Supplier shall enter into and maintain adequate insurance policies for the Goods supplied by it to Buyer in compliance with all applicable regulations and in accordance with the standard expected for a company operating similar activities. These insurance policies shall provide coverage for general and product liability and product recall, including compensation for all costs and losses incurred including without being limited to business interruption or any other indirect (economic) losses suffered by Buyer in connection with such liability. The coverage under said policies shall be sufficient and adequate for the type of business operated by Supplier, taking into account the specifics of the contractual relationship with Buyer. Supplier shall, upon Buyer’s first written request, provide Buyer with insurance certificates evidencing such coverage.

13.2 In the event of a third party product liability or other claim asserted against Buyer, caused by Goods delivered by Supplier to Buyer, Supplier shall defend, and hold Buyer harmless if so requested by Buyer from and against and in respect of the full liability of such product liability or other claims. Upon proven default of Supplier, Supplier shall indemnify Buyer for any and all damages payable to the third parties pursuant to applicable product liability law or similar laws.

 

ARTICLE 14             PRODUCT RECALLS

14.1. In the event that Supplier is required by law or any administrative or judicial order to recall any quantity of Goods, or deems such product recall necessary for any reason bearing on quality and/or safety of such Goods, Buyer shall make reasonable commercial efforts to comply with all product recall procedures then in effect, as established from time to time by Supplier and/or applicable law, provided that Supplier provides sufficient security for all costs incurred and losses suffered by Buyer in connection with such product recall.

14.2. In the event that Buyer is required by law or any administrative or judicial order to recall, or is prohibited to use, any quantity of the Goods, or deems such product recall or non-use necessary for any reason bearing on quality and/or safety of such Goods, Supplier shall indemnify and reimburse Buyer for all costs incurred or losses suffered by it in connection with such product recall.

14.3. Any damage claim based on product liability in accordance with EC Directive 85/374/EEC concerning liability for defective products shall remain unaffected by this Article.

 

ARTICLE 15             CONFIDENTIALITY

15.1. All information provided by a Party in connection with the Purchase Order, including all data, designs, drawings, specifications, communications and other information, revealed or disclosed in any form or manner, whether written, oral, electronic, visual, graphic, photographic, observational or otherwise, shall be treated as confidential by the other Party and shall only be used by the other Party for the purposes of the Purchase Order and/or these Conditions. Either Party undertakes to, and shall ensure that its employees, agents, suppliers and sub-contractors respect the confidentiality obligations set out in this Article.
15.2. The information referred to in the preceding paragraph may only be disclosed to a third party after having obtained the written consent of the Party that is the owner of the relevant information and provided that a written confidentiality undertaking has been obtained from the third party prior to any disclosure.

15.3. Upon request of a Party, the other Party will immediately return any information provided, either upon demand, or upon completion of the warranty period hereunder, including all copies made.

15.4. Neither Party shall make public statements, declarations, advertising, press release or any other divulgation to third parties, by any means, and through any medium (including but not limited to advertising, web site references, photographs, articles, press releases or interviews, speeches or programs), about the Purchase Order and/or its subject matter without the other Party’s prior written consent.

15.5. The Parties acknowledge and agree that the confidentiality obligations outlined in these Conditions shall not impede or restrict Buyer in performing its duties under these Conditions or in the procurement and sale of the Goods. As an exception to Articles 15.1 to 15.4 Buyer maintains in any case the right to use, disclose, or handle any information, even if this would be considered as Confidential Information, provided by Supplier under these Conditions as necessary to fulfil its obligations, including but not limited to, the purchase and sale of Goods

 

ARTICLE 16             INDEMNIFICATION

16.1. Supplier agrees to fully indemnify Buyer against all claims of any kind that may arise or result from the existence, performance and termination of these Conditions, the supply of the Goods, their use, or resale by Buyer, except if the claim is caused by a serious breach or negligence on behalf of Buyer. For the avoidance of doubt, Supplier agrees to indemnify Buyer in any case for claims that arise from:

1. A breach by Supplier of these Conditions;
2. Any negligence, fault or carelessness of Supplier or of any persons retained by it in the implementation of these Conditions;
3. Failure of Supplier to observe any applicable statutory and contractual obligations; or its employees, agents or sub-contractors in supplying and delivering the Goods;
4. claims by the customers of Buyer and/or their sub-buyers;

16.2. Supplier agrees to release, defend, protect, indemnify and hold Buyer and their Affiliates, and their respective directors, officers, employees, contractors, agents, suppliers, users, successors, and assigns, harmless from and against any and all costs (including attorney fees and court costs), expenses, fines, penalties, losses, damages, and liabilities arising out of any alleged or actual patent, copyright, trade secret, trademark, trade name, or other intellectual property right infringement or other claim, demand or action arising from or related to the design, fabrication, manufacture, production, sale, distribution or use of the Goods.

16.3. Buyer will hold Supplier, its directors, appointed representatives or employees harmless against all claims of any kind whatsoever that may arise or result from the existence, performance and termination of these Conditions which are caused i) through a serious breach of these Conditions by Buyer and/or ii) through gross negligence, fault or carelessness of Buyer or of any person retained by it in the implementation of these Conditions and/or iii) through Buyer’s failure to observe any applicable statutory and contractual obligations.

16.4. In no event shall Buyer have any liability to Supplier for any lost profits or costs of procurement of substitute goods or services, or for any indirect, special, punitive, or consequential damages however caused.

16.5. Buyer’s total liability under this Article shall be limited to the aggregate amount of the Prices of the Purchase Orders issued by Buyer to the in the last twelve (12) months preceding the occurrence giving rise to such claim, demand, suit, or proceeding.

 

ARTICLE 17             FORCE MAJEURE

17.1. Neither Party shall be responsible for a failure to perform its obligations under these Conditions if such failure is due to force majeure, including, but not limited to acts of terrorism, or any other cause outside the reasonable control of that Party, and occurring without its fault or negligence. Transport problems, illness, strikes, employee shortage, raw materials shortage, mechanical breakdown, breach of contract by third parties contracted by the Parties or a stagnation in the Parties’ business shall not be considered force majeure.

17.2. The Party whose performance has been so interrupted shall give the other Party notice of the interruption and cause thereof, and shall use every reasonable means to resume full performance under these Conditions as soon as possible. The other Party is entitled to cancel the Purchase Order at no cost if a force majeure event continues or is likely to continue beyond thirty (30) days.

 

ARTICLE 18             NOTICES

18.1. Except as specifically provided otherwise, all written notices required or permitted under these Conditions may be made by e-mail, except that any notice of breach, default, termination or proposed termination shall be sufficient only if given by e-mail and by registered or certified mail, return receipt requested, or courier with indication of content to the Party to receive such notice, addressed to the registered office or principal place of business of the addressee, or any other address as may, at the relevant time, have been notified as the correct address for service of documents.

 

ARTICLE 19             ASSIGNMENT AND NOTICE OF CHANGE

19.1. Supplier shall not have the right to sell, assign or transfer the Purchase Order and/or any rights or obligations under these Conditions, in whole or in part, to a third party without the prior written consent of Buyer. If consent is granted, any such assignment by Supplier will not (a) increase or alter Buyer’s obligations, (b) diminish the rights of Buyer or (c) release Supplier of any of its legal obligations under the Purchase Order.

19.2. Buyer shall have the right to assign the Purchase Order and/or any rights or obligations under these Conditions, to any party, including Buyer’s Affiliates upon giving prior written notice to Supplier. Parties agree that Supplier’s approval shall not be required for such assignment.

19.3. Supplier will give Buyer prompt written notice in case Supplier is subject to a substantial and/or critical Change of Control. In such event Buyer reserves the right to cancel the Purchase Order.

 

ARTICLE 20             SUB-CONTRACTORS, SUB-VENDORS AND SUB-SUPPLIERS

20.1. Unless otherwise provided in writing, Supplier shall not sub-contract or attempt to sub-contract any obligation arising hereunder without the prior written approval of Buyer. Buyer is not obliged to give any justification to Supplier for the approval or disapproval.

20.2. Upon request by Buyer, Supplier will submit a listing of all sub-contractors, sub-suppliers, or sub-vendors for review and approval by Buyer and will submit unpriced copies of all its purchase orders or other contracts for materials or equipment procured from third parties pertaining to the Purchase Order.

20.3. Supplier agrees that Buyer has the right to contact or visit any of Supplier’s sub-contractors, sub-vendors, or sub-suppliers directly to confirm delivery commitments or the origin, composition, manufacture, kind, quantity or quality of any Goods provided thereunder.

20.4. Any approval by Buyer shall not constitute a waiver of any term or condition of these Conditions and shall not release Supplier from its obligations under the Purchase Order. Supplier will incorporate these Conditions into any purchase order or other contract issued to any sub-contractor, sub-supplier or sub-vendor for any work to be provided under the Purchase Order of Buyer.

 

ARTICLE 21             AMENDMENTS

21.1  Any modification to these Conditions shall be notified in writing by Buyer to Supplier at least fourteen (14) days prior to the implementation of the modification in question.

 

ARTICLE 22             SEVERABILITY

22.1. If any provision of these Conditions is held to be invalid or unenforceable in whole or in part, the validity of the remaining provisions and the remainder of the affected provisions shall remain in full force and effect. There shall be substituted for any such provision a suitable provision which, as far as is legally possible, comes nearest to what the Parties hereto desired or would have desired according to the sense and purpose of these Conditions, had they considered the point when concluding these Conditions.

 

ARTICLE 23               WAIVER

23.1. None of the terms or conditions of these Conditions shall be deemed or construed to have been waived by either of the Parties unless such waiver is set forth in a written instrument properly signed by such Party.

 

ARTICLE 24             APPLICABLE LAW AND COMPETENT COURTS

24.1. These Conditions and any and all issues or controversies arising here from or related hereto, shall be governed by and construed exclusively in accordance with the laws of Belgium, exclusive of conflict of law rules and choice of law principles which would deem otherwise. The applicability of the United Nations Convention on Contracts for the International Sale of Goods (1980) is explicitly excluded.

24.2. Any Dispute arising from or related to these Conditions shall be submitted to the exclusive jurisdiction of the competent courts in Gent, Belgium.