Terms and conditions of sale

  1. This document describes the general terms and conditions of sale which are referred to herein as the 'terms and conditions'. Any order confirmation that has been accepted shall hereinafter be referred to as the "Agreement". The Agreement contains the complete and exclusive agreement between the parties with respect to the sale and purchase of any Product referred to in the "Agreement". No modification or addition to the Agreement shall be affected by any conduct or use of trade, or acceptance or confirmation by Seller of a purchase order or any other form submitted by Buyer containing additional or different terms and conditions. Additional terms or conditions provided unilaterally by Buyer are hereby expressly rejected by Seller. No supplement or amendment to the Agreement shall be valid unless made in writing and signed by an authorized representative of the party to be bound by it and specifically referring to the Agreement. If the Agreement and these Terms are inconsistent with each other, the Agreement shall prevail. Buyer's acceptance or use of any shipment of Product following Seller's offer of the Agreement (but before the Agreement is signed by both parties or before Buyer otherwise makes a final and timely act or expression of acceptance) constitutes acceptance of the terms of the Agreement with respect to that transaction but does not in itself constitute acceptance of the Agreement with respect to future shipments.
  2. Payment of the full amount of each invoice shall be made to Seller in the currency specified in the contract, without any deduction or set-off, and shall be claimed at the address stated on that invoice. All invoices are expressed in strictly net amounts. The first deliveries are subject to advance payment. Conditions can be discussed in function of the business relationship. In general, a term of 30 days applies to a long-term business relationship and is also in function of Buyer’s creditworthiness.
  3. If Buyer is in breach of any provision of the contract or other contractual obligation in Seller's favor, Seller may suspend performance of any of the Seller's executory obligations (including, but not limited to, payment of any rebates) until Buyer's breach has been remedied; or (b) by written notice to Buyer describing the breach, the contract and any other contractual obligation to Buyer is immediately terminated. In the event of termination, all of Buyer's outstanding payment obligations or other liabilities to Seller shall be due and payable no later than fifteen (15) days after delivery of the notice of termination. No termination shall have any effect on any breach of the Agreement that preceded it. Seller may reclaim the price for each delivery as a separate transaction, without reference to another delivery. Seller shall be entitled to set off any overdue payment obligations or other debts of Buyer against any outstanding payment obligations or other debts owed by Seller to Buyer. Buyer agrees to pay all of Seller's costs incurred for the collection of overdue amounts, including collection agencies and/or attorneys' fees, regardless of whether any legal proceedings are pending or not. If, in the absence of payment of an undisputed invoice, interest is due on any overdue amount on the due date, interest of a minimum of (i) two percent (2%) per month above the London Interbank Offered Rate (LIBOR) or (ii) the maximum rate permitted by the applicable statutory interest shall be charged. The interest will be accrued from day to day until full payment. Seller shall, at its discretion and without prejudice to any other of its accrued rights, be entitled to suspend delivery of the Product until all overdue amounts have been paid in full, including interest for overdue payments.
  4. Seller is not obliged to pay for an order submitted by Buyer, unless and until Seller confirms in writing the acceptance of such an order.
  5. Seller's failure to make one or more deliveries at the time they are due, if caused by (a) natural or man-made events, any other cause or unforeseen event beyond the reasonable control of the affected party; (b) any regulation, law or restriction of any government agency, court or other authority of a supranational organization of sovereign states or political subdivision thereof (a "government agency"), (c) Seller's inability to obtain from Seller's usual suppliers all necessary raw materials, energy sources, equipment, labor or transport at prices and on terms deemed by Seller to be inability to manufacture or purchase. The quantities affected may, at the option of either party, be removed from the Agreement without liability, but the Agreement shall otherwise remain unaffected. Seller may distribute its available stock to its buyers, including departments and departments of Seller and its affiliates, on such basis as Seller deems reasonable and practical, without liability to Buyer.
  6. In addition to the purchase price, Buyer shall pay or pay Seller for any applicable VAT, sale, excise, use or other taxes, assessments, licenses, import duties, duties or other levies, and any increases thereof which Seller may be required to pay in connection with the sale, production, transport, delivery or use of the Product.
  7. Seller may, at its discretion, supply items other than those specified (but will not be obliged to do so), provided that such supply will be at the price of the Agreement. If the price of the Agreement provides for absorption by Seller of all or part of the freight costs, Seller shall have the right to select the route, mode and carrier. If Buyer wishes a route, mode or courier other than selected by Seller, any additional costs will be paid by Buyer. If freight or other transportation costs are increased, Seller may add any increase to the Agreed Price. Buyer acknowledges that additional charges may be imposed for deliveries not made during standard business hours, for weekend or public holiday deliveries, and for deliveries announced less than twenty-four (24) hours in advance. Such costs shall be reasonably determined by Seller.
  8. At any (e) time(s) during the term of the Agreement, but upon fifteen (15) days' prior written notice, Seller may adjust the price of a Product. The price applicable to an order shall be the price applicable on the date of shipment. If a government action or request prevents Seller from requesting a price increase in accordance with the terms of the Agreement or from continuing the prevailing price, Seller shall have the right to (a) terminate this Agreement with thirty (30) days’ notice to Buyer, (b) suspend deliveries during the term of such restriction, or (c) apply to the Agreement (from the effective date of such restriction) a price permitted by such action or request.
  9. Any communication, including any related payment, relating to a dispute and/or payment to agree and settle any invoice or account that is the subject of a dispute, will be sent to the referred contact at the time of order and not to the regular payment address.
  10. Buyer shall make itself known and abide by all information and precautions to be taken in the transportation, delivery, unloading, discharge, storage, handling and use of each Product, all as described in applicable hazards communications provided by Seller ("Information"). Buyer shall inform its employees, agents, contractors, customers or any third party who may be exposed to the Product of such Information and make copies available to such parties. Buyer assumes full liability and responsibility for compliance with the Information and all applicable laws, statutes, ordinances and regulations of any Government ("Applicable Law") relating to the processing, transportation, delivery, unloading, discharge, storage, handling, disposition, sale or use of any Product ("Use"). Buyer further agrees to protect, defend and indemnify Seller against all claims, demands, causes of action, damages, losses, liabilities, costs, expenses (including reasonable attorneys' fees), fines and judgements ("Claims") arising out of Buyer's negligence, willful misconduct or breach of Buyer's obligations below, as well as all Claims arising from the use of a Product after delivery by Seller, which (i) do not correspond to any information provided to Buyer, (ii) violate any applicable law or (iii) are within Buyer's liability and responsibility under this Agreement. Any technical advice or service provided, or recommendation made by Seller or a representative thereof with respect to the use of a product is given in good faith, but Seller makes no warranty, express or implied, as to the completeness or accuracy or the results to be obtained. Seller shall not be liable for and Buyer shall take all risks of such advice and service and the results obtained in reliance thereon.
  11. Seller makes no warranty, express or implied, in fact or in law, except Seller's obligation to comply with the published specifications of Seller's delivered products. These specifications may be revised over time. Sellor makes no warranty of merchantability or fitness for a purpose or other similar warranties that would be implied.
  12. Seller's total liability and Buyer's exclusive remedy for any cause of action related to the Agreeme,t, although also caused and whether based on tort, contract, strict liability or any other legal theory, is expressly limited to replacement of non-conforming products or payment in cash in order not to exceed the purchase price of a specific quantity of product for which damage is sought. In no event shall Seller be liable for any other damages, including, without limitation, any consequential, incidental, special or punitive damages, except in the case of fraud, gross negligence or willful misconduct.
  13. Buyer must inspect the product below immediately upon delivery. Buyer who does not give notice within thirty days from the date of delivery, has unconditionally accepted the quality of the product, and Seller shall be released from all claims regarding respecting weight, tare, and tests guaranteed by Seller.
  14. Buyer assumes full responsibility and liability for quality control, testing and determining the suitability of a product for its subsequent intended use or use in a process or as part of another product ("Intended Use"). Buyer agrees to protect, defend and indemnify Seller against all Claims related thereto, including, without limiting the generality of the foregoing, Product Liability Claims relating to Proposed Use as well as infringement of third-party intellectual property rights, patents on processes used by Buyer or patents on products made by such Intended Use.
  15. Buyer agrees not to use any writings, data, designs, drawings, specifications or other information provided by Seller to Seller or perceived by Buyer without permission and only during the agreement. Upon completion, cancellation or termination of this Agreement, Buyer must provide all prior information, including any copies, excerpts or derivatives of tangible materials containing the foregoing, along with Buyer's certification of such representation. Seller shall always be entitled to any drawings, specifications, writings or other documents prepared or provided by Buyer hereunder.
  16. If at any time Buyer's financial condition or prospects or Seller's credit risk becomes unsatisfactory for Seller (at Seller's discretion), Seller may require cash or satisfactory security prior to any shipment or delivery below; such election shall not affect Buyer's obligation to accept and pay for the contracted materials. In addition, Seller may terminate the Agreement and any undelivered orders immediately without notice if Buyer becomes insolvent, dissolves, liquidates, places a general order on behalf of its creditors, files or has filed for bankruptcy, or has appointed a recipient for a substantial portion of its assets.
  17. Except as expressly provided in the Agreement, delivery of the Product to that facility of Seller or a third party where the Product is completed or stored by or on behalf of Seller. Ownership and risk of loss of all Products sold below shall pass to Buyer at the time of Seller's shipment whether or not Seller pays for part of the freight, and notwithstanding any other indication elsewhere in the Agreement.
  18. The Agreement is binding and benefits the successors and permitted transfers of the parties. The Agreement and any right or obligation hereunder shall not be assignable or transferable by either party in whole or in part without the prior written consent of the other party, except that Seller shall have the right to assign this Agreement and its rights and obligations hereunder, without Buyer's consent to, (1) any entity with which Seller (a) merges, (b) sells a substantial portion of its assets or activities, or (c) sells a substantial portion of its assets or activities related to the production and/or sale of a Product and (2) any of Seller's affiliates. The Seller and its successors in title shall be entitled to assign any right to payment under this Agreement to any person without the prior written consent of Buyer.
  19. The rights and obligations of either Party arising out of the nature or necessity of the termination or expiry of this Agreement shall survive the termination or expiry of this Agreement.
  20. This Agreement shall be governed by and construed in accordance with the laws of Belgium without regard to its principles of conflict of laws. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Any disputes under this Agreement that cannot be resolved by either party through good faith negotiations shall be settled by the courts of Antwerp, Belgium and the parties hereby consent to the exclusive jurisdiction of such courts. If a party does not exercise any right it has under the Agreement on one occasion, it shall not operate or may be construed as a waiver by that party of the same right on another occasion or other rights it has; any waiver shall be signed in writing by the party that waives it. If any provision of the Agreement is declared invalid or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect and all or any part of such provision shall be deemed amended to be enforceable to the maximum extent permitted. Nothing in the Agreement shall be construed as creating any direct or beneficial right in or on behalf of any third party.