CONDITIONS OF SALES
Version of February 2018
1.1 These General Terms and Conditions of Sales (“Conditions”) govern the offering, sale and delivery of all goods and/or services (the “Goods”) from or on behalf of Neoceram (“Seller”) to customer (“Customer”) and apply to all similar dealings between Seller and Customer.
1.2 These Conditions supersede any and all prior oral and written quotations, communications, agreements and understandings of the parties in respect of the sale and delivery of the Goods and shall apply in preference to and supersede any and all terms and conditions of any order placed by Customer and any other terms and conditions submitted by Customer. Failure of Seller to object to terms and conditions set by Customer shall in no event be construed as an acceptance of any terms and conditions of Customer. Neither Seller’s commencement of performance nor Seller’s delivery shall be deemed or constituted as acceptance of any of Customer’s terms and conditions. If these Conditions differ from any terms and conditions of Customer, these Conditions and any subsequent communication or conduct by or on behalf of Seller, including, without limitation, confirmation of an order and delivery of Goods, constitutes a counter-offer and not acceptance of such terms and conditions submitted by Customer. Any communication or conduct of Customer which confirms an agreement for the delivery of Goods by Seller, as well as acceptance by Customer of any delivery of Goods from Seller shall constitute an unqualified acceptance by Customer of these Conditions.
1.3 These Conditions may only be varied or waived by a duly executed written agreement between Seller and Customer.
1.4 Seller and Customer agree that valid, enforceable and binding obligations may result from electronic means of communication. Any electronic communication between Seller and Customer shall be considered to be a “writing” and/or “in writing”.
2. Quotations, Orders and Confirmations
2.1 Quotations, made by Seller in whatever form, are not binding upon Seller and merely constitute an invitation to Customer to place an order. All quotations issued by Seller are revocable and subject to change without notice. Orders are not binding until accepted by Seller in writing (“Seller’s Confirmation”). Seller is always entitled to refuse an order without indication of its reasons.
2.2 Oral statements and agreements made by Seller’s employees, officers, representatives and/or agents are not binding upon Seller unless and only to the extent that such oral statements are confirmed or made in writing by duly authorized representative(s) of Seller.
2.3 Any samples supplied to Customer are supplied solely for information purposes and in no way imply any express or implied conditions or warranties of any kind, including as to quality, description, merchantability, suitability or fitness for any purpose and Customer shall be deemed to have satisfied itself as to such matters prior to ordering the Goods.
2.4 Each delivery shall stand as a separate transaction and any failure to deliver shall have no consequences for other deliveries.
Prices and currencies of Seller’s Goods are as set out in Seller’s Confirmation. Unless agreed otherwise, Seller’s prices include standard packaging but do not include Value Added Tax or any other similar applicable taxes, duties, levies or charges in any jurisdiction levied in relation to the Goods or the delivery thereof (“Taxes”). If Seller grants a discount, this discount only relates to the delivery specifically mentioned in Seller’s Confirmation.
4. Payment and Customer’s credit
4.1 Unless expressly stated otherwise in Seller’s Confirmation, payment shall be made on the basis of net cash, to be received by Seller within thirty (30) days following the date of Seller’s invoice for the Goods by means of transfer into the bank account mentioned on the invoice. All payments shall be made without any deduction on account of any Taxes and free of set-off or counterclaim.
4.2 With regard to payment of the price for Goods, time is of the essence. Seller may, without prejudice to any other rights of Seller, charge interest on any overdue payment at the higher rate of either ten percent (10%) per annum or one and a half times the prevailing rate under applicable law per annum, but not to exceed the maximum interest rate permitted under applicable law, from the due date computed on a daily basis until all amounts outstanding are paid in full. All costs and expenses incurred by Seller with respect to collection of overdue payments (including, without limitation, reasonable attorney’s fees, expert fees, court costs and other expenses of litigation) shall be for Customer’s account.
4.3 Any complaint with respect to the invoice must be notified to Seller within eight (8) days after the date of invoice. Thereafter Customer shall be deemed to have approved the invoice.
5. Delivery and Acceptance
5.1 Unless expressly stated otherwise in Seller’s Confirmation, all deliveries of goods shall be Ex Works Seller’s production facility, as the term Ex Works shall have the meaning assigned to same in the latest version of INCOTERMS published by the International Chamber of Commerce at Paris, France, at the time of Seller’s Confirmation.
5.2 Unless expressly stated otherwise in Seller’s Confirmation, any times or dates for delivery by Seller are estimates and shall not be of the essence. They should be intended to be from the date when all the technical information and drawings necessary for the execution of the order have been agreed by the parties and any advanced payment required in the order has been received by Seller. The Seller is entitled to deliver the Goods as stated in Seller’s Confirmation in parts and to invoice deliveries separately. Delays in delivery shall not entitle the Customer to cancel the order nor justify any penalties or damages. In no event shall Seller be liable for any kind of indirect or consequential damages caused by any delay in delivery. Delay in delivery of any Goods shall not relieve Customer of its obligation to accept delivery thereof. Deviations in quantity of Goods delivered from that stated in Seller’s Confirmation shall not give Customer the right not to accept the Goods. Customer shall be obliged to pay the rate specified in Seller’s Confirmation for the quantity of Goods delivered.
6. Examination and conformity to specifications
6.1 On delivery and during the handling, use, processing, transportation, storage and sale of the Goods (the “Use”), Customer shall examine the Goods and satisfy itself that the Goods delivered meet all contractual requirements.
6.2 Complaints about the Goods shall be made in writing and must reach Seller not later than seven (7) days from the date of delivery in respect of any defect, default or shortage which would be apparent from a reasonable inspection on delivery, and seven (7) days from the date on which any other claim was or ought to have been apparent, but in no event later than six (6) months from the date of delivery of the Goods. Use or processing of the Goods shall be deemed to be an unconditional acceptance of the Goods and a waiver of all claims in respect of the Goods.
6.3 Defects in parts of the Goods stated in Seller’s Confirmation do not entitle Customer to reject the entire delivery of the Goods. Complaints, if any, do not affect Customer’s obligation to pay as defined in paragraph 4. Upon receipt of a notice of defect, Seller is entitled to suspend all further deliveries until the complaints are established to be unfounded and/or refuted or until the defect has been totally cured.
7. Transfer of Risk and Property
7.1 The risk of the Goods shall pass to Customer on delivery.
7.2 Goods for which delivery is suspended pending payment by Customer , as well as Goods of which delivery is wrongfully rejected or not accepted by Customer, shall be held and stored by Seller at the risk and expense of Customer.
7.3 The ownership of the Goods shall not pass to Customer and full legal and beneficial ownership of the Goods shall remain with Seller unless and until Seller has received payment in full for the Goods, including all secondary costs such as interest, charges, expenses etcetera.
8. Limited Warranty
Seller solely warrants that on the date of delivery the Goods shall conform to the Specifications. If and to the extent Goods fail to meet such warranty Seller may at its own option within a reasonable time either repair or replace the Goods at no charge to Customer, or issue a credit for any such Goods in the amount of the original invoice price. Accordingly, Seller’s obligation shall be limited solely to repair or replacement of the Goods or for credit of the Goods.
9. Limitation of Liability
Under no circumstances shall Seller be liable to Customer or any other person for any kind of special, incidental, indirect, consequential or punitive damage or loss, cost or expense, including without limitation, damage based upon lost goodwill, lost sales or profits, work stoppage, production failure, impairment of other goods or otherwise, and whether arising out of or in connection with breach of warranty, breach of contract, misrepresentation, negligence or otherwise. Notwithstanding anything herein contained to the contrary, the liability of Seller for any and all claims for direct damages arising out of or in connection with the Goods and the Use thereof shall under no circumstances exceed the sum of Customer’s payments for the Goods that are the subject of the claim.
10. Governing Law and Jurisdiction
The parties’ rights and obligations arising out of or in connection with Seller’s Confirmation and/or these Conditions shall be governed, construed, interpreted and enforced according to the laws of Belgium. The court of Mons (Belgium) shall have jurisdiction over any dispute arising out of, or in connection with, orders and deliveries of products of Neoceram.
11. Intellectual Property
11.1 Seller has not verified the possible existence of third party intellectual property rights which might be infringed as a consequence of the sale and/delivery of the Goods and cannot be held liable for any loss or damages in that respect.
11.2 The sale of Goods shall not, by implication or otherwise, convey any license under any intellectual property right relating to the compositions and/or applications of the Goods, and Customer expressly assumes all risks of any intellectual property infringement by reason of its importation, Use of the Goods, whether singly or in combination with other materials or in any processing operation.