De Zeeman Pro
General terms and conditions of sale
DE ZEEMAN PRO NV – GENERAL CONDITIONS OF SALE
1. Applicability of general sales conditions
1.1 Subject to the application of expressly agreed special terms and conditions in writing, which shall take precedence over these general terms and conditions, all sales by De Zeeman Pro NV (hereinafter referred to as “Seller”) shall be subject to the following general terms and conditions. Any order presupposes the full acceptance of these general conditions and, where applicable, the special conditions included in the relevant quotation.
1.2 No other terms and conditions referred to in the Buyer’s orders or its representatives, correspondence, conditions of purchase or other documents of the Buyer shall apply, even if not expressly rejected by the Seller.
1.3 If any provision of the Order or these Terms of Sale is conclusively found to be invalid or unenforceable under any applicable law, the validity or enforceability of the other provisions shall not be affected. Any invalidity or unenforceability under one law will not affect the validity or enforceability of such provisions under any other law. The invalid or unenforceable term or provision shall be deemed replaced by a term or provision that is valid and enforceable and that most closely approximates the intent of the invalid or unenforceable term or provision.
2. Price quotations and orders
2.1 Unless otherwise stated, Seller’s price quotations are valid for a period of up to one month. Price quotations will always be without obligation, even if a certain acceptance period has been provided. The buyer knows that the Seller operates commercially throughout the world. Price quotes will indicate the country from which goods can be delivered.
2.2. Orders should always be placed in writing. No order is binding on Seller except upon written confirmation (by email or otherwise), or upon issuance of an invoice.
3.1 Goods will be delivered EXW (ex works) (in accordance with the latest version of the Incoterms as laid down by the International Chamber of Commerce), unless explicitly agreed otherwise.
3.2 Delivery dates are given in good faith and are indicative only. Delays in performance will in no case give rise to fines, damages or cancellation of the contract.
3.3 In case of export, the buyer shall be responsible for obtaining all import licenses, import authorizations and letters of credit, as well as for fulfilling any other obligation in order to lawfully and legally export the goods to be delivered. If the required permits, authorizations and credits have not been obtained and brought to the attention of the Seller within two months of confirmation of the order, the Seller may consider the contract null and void.
4. Force Majeure
4.1 Under no circumstances shall the Seller be liable for any costs, damages, interest or similar payments if the Seller would be unable to perform its obligations to the Buyer due to circumstances beyond its control. In such a case, the Seller will inform the Buyer as soon as possible.
4.2 For the purposes of these Terms and Conditions, circumstances beyond the control of the Seller (“Force Majeure”) shall mean all facts and circumstances beyond the control of the Seller, whether or not they were foreseeable at the time the contract was entered into. Force majeure shall include, but not be limited to, war, terrorist attack, natural disasters, strike or lockout, fire, flood, governmental restrictions and/or actions such as expropriation, embargo or ban on imports and exports, shortage of transportation means, general scarcity of raw materials or goods and restrictions on the use of energy, whether the occurrence or force majeure occurs at the Seller or any of its suppliers.
4.3 Without prejudice to any other (legal) remedies available to Seller, Seller shall, in the event of force majeure, be entitled to terminate the agreement
termination of the part not yet implemented as soon as the force majeure situation lasts longer than four (4) weeks, or to adapt the agreement, including the prices and/or the delivery conditions, to the prevailing circumstances, without the Seller being held liable in any way.
5.1 The prices payable for the goods are those shown on the invoice. Unless otherwise provided in Seller’s quotation or order confirmation, all prices shall be net of VAT and delivery, transportation and insurance surcharges.
5.2 If, due to any act or omission of the Buyer, VAT was not properly levied or exempted, the Buyer shall be fully liable therefor. In this regard, the Buyer shall indemnify the Seller against all related third party claims.
5.3 Prices are calculated based on economic conditions at the time of the quotation and are subject to price changes of Seller’s suppliers, exchange rates and the percentage of import duties. Depending on the fluctuations of these elements, prices may be changed unannounced for any reason.
5.4 Prices are quoted in Euro. In the event that sales are made in a currency other than the Euro, any change of at least 2% in the exchange rate of the currency in question against the Euro on the date of the quotation will be settled on the date of invoicing.
5.5 Unless otherwise stated on the invoice, the price is payable within 30 days of the invoice date. The total invoice amount will be paid net to one of the accounts listed on the invoice. In case of dispute, the invoice must be protested within eight (8) calendar days of receipt.
If – in the reasonable opinion of the Seller – the credit of the Buyer would be impaired, the Seller shall be entitled to request a security (in any form the Seller deems appropriate) from the Buyer for the proper performance of its obligations on the basis as decided by the Seller.
7. Conformity and Warranty
7.1 Seller warrants for a period of 12 months, respectively 3 months in respect of “soft parts” (including but not limited to the particles manufactured in natural rubber, O-rings, diaphragms), from the date the goods are at the disposal of the buyer, that the goods will be free from hidden defects. This warranty does not cover defects resulting from external causes, use, wear and tear, transportation, unsuitable storage, alteration, abuse, negligence, misuse, abnormal or unreasonable use, use not in accordance with specifications (temperature, water hardness, humidity, corrosive or dusty atmosphere, fluctuations of (electrical) voltage, etc.) or use in any other improper manner, whether intentional or otherwise. Defective goods can only be returned with the written agreement of the Seller. Goods will be returned at the risk and expense of the buyer. No credit will be allowed in respect of any costs incurred by the Buyer or any direct or indirect loss, howsoever caused.
7.2 As soon as the goods are at the disposal of the Buyer, the Buyer shall carefully inspect these goods and shall immediately, in writing and within eight (8) calendar days following the availability of the goods, make any relevant and precise complaint with respect to any visible defect or conformity problem (specifying invoice date and number). After such period of eight (8) calendar days, any visible defect shall be deemed to have been definitively accepted by the Buyer. In any case, the buyer may not refuse the goods on minor or futile grounds.
7.3 In the event of non-conformity, the complaint must be sent in writing to De Zeeman Pro NV at the following address: Jubellaan 54, B-2800 Mechelen, Belgium. The fulfillment of Seller’s warranty obligation shall be limited to, at Seller’s option, replacing the defective goods or reimbursing Buyer for such
defective goods within a reasonable time.
8. Retention of title
8.1 The risk and responsibility with respect to the goods shall pass to the buyer at the time of conclusion of the contract. However, the goods shall remain the exclusive property of the Seller until full payment of the principal, interest and surcharges. As long as the ownership of the goods has not passed to the buyer, the latter may not dispose of or encumber the goods, or transfer ownership or grant any other right to a third party. The Buyer is obliged to treat the goods delivered with retention of title with due care and to store them to the extent possible as recognizable property belonging to the Seller.
8.2 The Seller is hereby irrevocably authorized to repossess (or cause to be repossessed) the goods delivered under reservation of title without any judicial intervention, prior warning or notice of default. The buyer shall cooperate in this regard under penalty of a fine of five hundred euros (EUR 500) for each day of default. The Buyer shall inform the Seller of, inter alia, any additional local requirement applicable in the region where the goods purchased from the Seller are stored, in order to establish and exercise Seller’s reservation of title.
The contract shall not be rescinded by the Seller’s repossession unless the Seller gives written notice to the Buyer.
8.3 If the Buyer is in default of payment and the Seller takes back the goods delivered, making use of its retention of title referred to in this Article, all costs associated therewith shall be borne by the Buyer, without prejudice to the Seller’s right to claim compensation in the event of any reduction in the value (for whatever reason) of the goods.
9. Confidentiality – Intellectual Property Rights.
9.1 Unless otherwise expressly agreed in writing with the Seller, under no circumstances shall the Buyer disclose to the public or any third party any confidential information or information belonging to or controlled by the Seller.
9.2 All patents, trademarks, copyrights and/or other intellectual property rights and/or any proprietary or confidential information relating to the goods shall remain the property of the Seller or its licensor. Under no circumstances shall there be transferred to the Buyer any rights, titles or interests or any license concerning any intellectual property right belonging to or held by the Seller. The buyer is not permitted to disclose any confidential information, even if of a commercial nature, concerning intellectual property rights, under penalty of compensation for proven damages.
10.1 The Seller shall not be liable to the Buyer or any third party for any indirect or consequential loss or damage such as, but not limited to, lost profits, loss of clientele, increase in overheads or loss of data, resulting from any failure or interruption in the functioning of the goods.
10.2 In no event shall Seller’s liability for direct damages to persons or property or for any contractual default exceed the purchase price of the specific product(s) that caused any liability.
10.3 The Seller shall not be liable for any damage caused simultaneously by a defective item and the fault of the Buyer, any injured person or any other person for whom the Buyer or the injured person is responsible.
10.4 Nor shall the Seller be liable for compensation in respect of any good or part thereof which (i) is based on specifications, drawings, models or other data supplied by the buyer or (ii) has been unilaterally modified by a party other than Seller. The Seller shall not be further liable (iii) to the extent that the purchaser continues to engage in infringing activities
after adjustments were provided to avoid the breach or (iv) if the use of the goods, rather than the goods themselves, is the primary cause of the breach.
11. Cancellation of orders
11.1 Orders accepted by the Seller may only be cancelled by the Buyer with the written consent of the Seller. Cancellations are made in writing.
11.2 In the event of cancellation or revocation of an order for any reason, and without limiting any other (legal) remedy available to Seller as a result of such cancellation or revocation, Seller shall be entitled to liquidated damages of 30% of the total invoice amount that would have been charged for the cancelled order, plus actual costs for all expenses and commitments already made by Seller with respect to the goods whose order is cancelled.
12. Late payment and cancellation
12.1 Late payment
12.1.1 In the event of non-payment on the due date of an invoice, the full outstanding amount of all other invoices, including those not yet due, shall become immediately due and payable by operation of law.
12.1.2 In case of non-payment on the due date, an interest of 1% per calendar month started is due. In addition, Seller shall be entitled by operation of law and without notice of default to liquidated damages of 10% of the total invoice amount, with a minimum of EUR 125 and without prejudice to Seller’s right to claim higher damages if it is proved that the actual damage is higher.
12.1.3 In case of non-payment, the Seller reserves the right to suspend all pending orders or any other contractual obligation. The Seller shall not be held liable for any possible (future) delay in delivery as a result of such suspension.
12.2.1 The Seller reserves the right to cancel all pending orders and/or the contract without further notice, warning or compensation in favor of the buyer, for the following reasons :
- – in the event of late performance or non-performance of the buyer’s obligations, including late payment;
- – in the event of incapacity, bankruptcy, insolvency, protest, total or partial seizure of assets, death, cessation of payment, application for deferral of payment, opening of the procedure for judicial reorganization or the refusal by the purchaser to provide a guarantee as provided for under Article 6, or any other event demonstrating the financial difficulties of the purchaser.
In case of cancellation, the Buyer shall owe to the Seller the compensation provided for in Article 11.2 by way of damages, such compensation corresponding to the inconvenience caused to the Seller and the administrative costs incurred in this connection, without prejudice to the Seller’s right to claim higher compensation if it is proved that the actual damages are higher.
12.2.2 In case of cancellation by the Buyer of pending orders or the contract, not caused by intent or gross negligence of the Seller, all installments already made by the Buyer shall be considered as finally acquired by the Seller. The remaining installment payments shall be paid by the Buyer, provided that such amounts shall be reduced by the anticipated costs and expenses not incurred by the Seller and reasonably calculated by the Seller, without prejudice to the right to compensation if the actual loss is greater to the Seller.
13. Applicable law – dispute resolution
13.1 These terms and conditions of sale are governed by Belgian law, to the exclusion of the UN Convention on International
contracts for the sale of movable goods (Vienna Sales Convention), signed at Vienna on April 11, 1980.
13.2 In case of dispute, only the courts of Mechelen (Belgium) are competent. All costs related to the legal recovery, including fees, shall be borne by the buyer.
(February 25, 2014)