General Terms and Conditions of Sale of DEMEYERE

Section 1 Validity

(1) These General Terms and Conditions of Sale shall apply exclusively for the sale of goods by DEMEYERE Comm.V. with registered office at Atealaan 63, 2200 Herentals (Belgium), and with VAT nr BE 0400.853.884 (hereinafter "DEMEYERE"). Any deviating, supplementary or opposing terms and conditions, in particular the general terms and conditions of the purchaser (hereinafter the “Purchaser”), shall not apply even if they have not been expressly objected to or if DEMEYERE accepts or carries out a service with regard to them without reservation.
(2) These General Terms and Conditions of Sale shall also apply to any future transactions between DEMEYERE and the Purchaser.
(3) Any amendments, supplements or other special agreements must be in writing to be effective. This also applies to any waiver of this written form requirement.

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Section 2 Offer, order and conclusion of contract

(1) Offers by DEMEYERE shall be non-binding and may be changed by DEMEYERE without prior notice unless they have been expressly designated as binding in writing.
(2) DEMEYERE may accept orders from the Purchaser within two weeks of receipt. Acceptance of an order shall only be binding upon DEMEYERE upon written confirmation (including via fax or email) or dispatch of the goods.
(3) Any statements made by DEMEYERE in advertisements, brochures or other documentation on the characteristics of the goods shall be by way of non-binding indications and shall not form part of their agreed properties and condition, provided any such statement is not expressly set out in a binding offer or order confirmation from DEMEYERE as a statement on their properties. Warranties, in particular those covering properties and condition, shall only be binding upon DEMEYERE to the extent that they are contained in a binding offer or order confirmation from DEMEYERE, that they are expressly designated as being a "warranty" or "warranty of properties and condition" and that they expressly stipulate the ensuing obligations for DEMEYERE.
(4) The quantities to be delivered must necessarily coincide with the standard packaging quantities, which the Purchaser is aware of. The method of transport, shipping, packaging, etc., is determined by DEMEYERE if no further indication is provided by the Purchaser. Any specific requirements of the Purchaser on the transport / shipment will only be performed if the Purchaser has declared that it will bear the additional costs.

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Section 3 Prices, payment

(1) The prices stated on our price lists, quotations and order confirmations are indicative only, and may be amended by DEMEYERE without prior warning until the contract is finally concluded. Our prices exclude taxes, mailing costs, insurance, permits and installation. Currency exchange fluctuations, import duties, insurance and freight charges and procurement prices of the components and services may incite DEMEYERE to amend its prices.
(2) For deliveries inside of the Benelux, the prices stated shall be understood to include delivery EXW (Incoterms 2010) at our Herentals (Belgium) factory plus the applicable statutory VAT, unless expressly agreed otherwise. If the goods are shipped by DEMEYERE, then DEMEYERE shall charge shipping costs for packaging, freight and insurance depending on the total net purchase price for the respective order (hereinafter the "Net Order Value") as follows:
For a Net Order Value that is
- under €300.00, shipping costs of €20.00 plus will be charged;
- €300.00 and over, no shipping costs will be charged.
(3) For deliveries outside of the Benelux, the prices stated shall be understood EXW (Incoterms 2010) at our Herentals (Belgium) factory plus the applicable statutory VAT and plus packaging, unless expressly agreed otherwise.
(4) Invoices shall be due for payment without any deductions within 30 days of the invoice date, unless other conditions are agreed in writing. Bank charges shall be borne by the Purchaser. In case of an agreed direct debit (SEPA company debit / pre-notification) - for reasons to facilitate payment transactions - the customer agrees upon the possibility to reduce the basic 14-days information period before encashment of a due payment to one single day before debit.
(5) Every complaint relating to an invoice must be sent to us by registered letter with proof of delivery, stating the date and number of the invoice, within a time period of 5 working days as from the receipt, with receipt deemed accomplished 3 working days as from the date stated on the invoice. After the expiration of this time period, the invoice will be considered as having been finally accepted by the Purchaser and no further complaint whatsoever will be taken into account.
(6) Failure to pay an invoice on the due date, any application for an amicable or judicial settlement or deferred payment, or any other circumstance implying the Purchaser's inability to pay, will render all outstanding balances on all other invoices immediately payable, even if their balances have not yet become due and will entitle DEMEYERE to demand the payment at the time of dispatch for quantities still to be delivered, for all current transactions or orders with the Purchaser.
(7) If payment is not made within the specified term the Purchaser shall be deemed to be in default without any further reminder. The timeliness of the payment shall be determined on the basis of when the invoice amount is credited to the account specified by DEMEYERE. In the event of late payment DEMEYERE may charge default interest at the rate used by the European Central Bank for its most recent basic refinancing transaction prior to the first day of the relevant six months period plus eight percent (8%) with each month that has commenced becoming due and also be increased with a fixed compensation of 15% of the outstanding amount, with a minimum of €38. DEMEYERE reserves the right to assert claims for further damages.
(8) In case of significant modification to the credit worthiness of the Purchaser, DEMEYERE reserves the right to demand, by simple notification, reasonable guarantees to ensure the proper performance of its commitments and to alter the Purchaser’s payment terms, which may include withdrawing or altering any credit limit previously granted, requiring prepayment, and demanding adequate assurance of due performance by the Purchaser through the provision of a bank guarantee. DEMEYERE reserves the right to terminate all ongoing contracts and orders with the Purchaser if the requested guarantees are not provided within 8 days after notification.

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Section 4 Offsetting, withholding payment

The Purchaser shall only be entitled to set off or exercise a statutory right of retention insofar as its counterclaims are not disputed or have been determined by a final court judgment.

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Section 5 Delivery

(1) The goods shall be delivered EXW (Incoterms 2010) at our Herentals (Belgium) factory, unless expressly otherwise agreed.
(2) The stated delivery deadlines or dates shall be non-binding, unless they are expressly agreed as being binding. The Purchaser may request DEMEYERE in writing to effect delivery four weeks after the expiry of a non-binding delivery date or a non-binding delivery deadline.
(3) Delivery by DEMEYERE shall be on the assumption of the timely and proper fulfilment of the Purchaser's obligations. It reserves the right to object to an unfulfilled contract. If the Purchaser fails to meet its duties of cooperation in respect of the delivery in a timely manner, including in the event of a late delivery of any documents and explanations, required for the proper completion of the order, then agreed delivery deadlines shall be extended, or agreed delivery dates shall be deferred, for a commensurate length of time.
(4) The Purchaser shall be deemed to be in default of acceptance if it fails to accept the goods by the binding delivery deadline or on the binding delivery date. In the event of a non-binding delivery deadline or non-binding delivery date DEMEYERE may notify the Purchaser that the goods are ready; if the Purchaser does not accept the goods within two weeks of the receipt of such notification it shall be deemed to be in default of acceptance.
(5) If the Purchaser fails to take delivery of the products or fails to give DEMEYERE adequate delivery instructions, without prejudice to any other right or remedy available, DEMEYERE may: (i) store the products until actual delivery and charge the Purchaser for the reasonable costs thereof, including insurance costs, with a minimum of 10% of the value of the goods per started month; or (ii) terminate the contract forthwith and sell the products. The Purchaser shall bear any and all costs (including original and return carriage costs) associated with any unjustified refusal of delivery of products ordered pursuant to a contract. The risk of the loss, damage or destruction of the goods shall be transferred to the Purchaser no later than at the time of the default of acceptance or other breach of duties of cooperation.
(6) Partial deliveries shall be permissible provided the Purchaser will not incur any significant extra expense or any significant additional costs as a result. Each partial delivery may be invoiced for separately. In case of custom-made goods DEMEYERE reserves the right to an over- or underdelivery of up to 10% of the purchase order quantity.

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Section 6 Transfer of risk, shipment

(1) The risk of the loss, damage or destruction of the goods shall be transferred to the Purchaser no later than at the time of their delivery to the shipper or other transporter in the outgoing goods department of our Herentals (Belgium) factory. This also applies if DEMEYERE bears the shipping costs pursuant to Section 3 (2) or on the basis of a special agreement. Section 5 (5) shall remain unaffected.
(2) The provisions contained in this Section 6 shall also apply for partial deliveries.

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Section 7 Retention of title

(1) DEMEYERE shall retain title to the goods until all payments due under the current business relationship have been received in full. In the event of a current account relationship DEMEYERE shall retain title until all the payments due have been received from acknowledged balances.
(2) In the event of breaches of contract on the part of the Purchaser, including default on payment, DEMEYERE shall be entitled to take back the goods delivered that were subject to the retention of title (hereinafter "Goods Subject to Retention of Title") after withdrawing from the respective purchase contract and shall be entitled to enter the Purchaser's business premises during normal business hours for this purpose. No deadline need be specified in advance for withdrawing from the contract in the case of a default on payment. After it has taken back the goods and issued a prior warning DEMEYERE shall be entitled to appropriate exploitation of the Goods Subject to Retention of Title. The exploitation proceeds shall be offset against the Purchaser's liabilities after the deduction of reasonable exploitation costs.
(3) The Purchaser must handle Goods Subject to Retention of Title with care, insure them adequately and, where necessary, service them.
(4) The Purchaser shall be entitled to resell the Goods Subject to Retention of Title in the normal course of business. In this case, however, it shall assign all claims, with all their ancillary rights, deriving from such a resale to DEMEYERE irrespective of whether these arise before or after the processing of the Goods Subject to Retention of Title. Regardless of DEMEYERE's authority to collect the claim itself, the Purchaser shall continue to be authorised to collect the claim even after its assignment. DEMEYERE shall refrain from collecting the claim as long as and insofar as the Purchaser meets its payment obligations, no application has been filed to open insolvency proceedings or similar proceedings, and there is no suspension of payments in place. The Purchaser must inform DEMEYERE immediately in writing if any one of these cases applies; if so requested by DEMEYERE it shall be obliged to notify its debtors of an assignment as well as to provide DEMEYERE with any information and documents it needs to assert its rights.
(5) In addition, the Purchaser shall be prohibited from selling or attaching the Goods Subject to Retention of Title or transferring them by way of security. In the case of enforced attachment and any other impairments of the owner's interests (e.g. the impending opening of insolvency proceedings against the Purchaser) the Purchaser shall be obliged to point out that DEMEYERE is the owner and to immediately inform DEMEYERE of the situation in writing.
(6) Any processing or modification of the Goods Subject to Retention of Title by the Purchaser shall be undertaken on behalf of DEMEYERE. If this is by means of third-party items that do not belong to DEMEYERE, or if the Goods Subject to Retention of Title are inextricably mixed or joined with such third-party items, then DEMEYERE shall acquire joint title to the new items in the ratio of the value of the Goods Subject to Retention of Title to the third-party items; furthermore the same provisions as for the Goods Subject to Retention of Title apply to the new items. If the joining takes place in such a way that the Purchaser's items are to be regarded as the main items, then the Purchaser shall transfer joint title to DEMEYERE on a pro rata basis.
(7) If the above-mentioned securities exceed the claims to be secured by more than 10%, DEMEYERE shall release securities at its own discretion upon the Purchaser's request.

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Section 8 Liability

(1) In the event that the products supplied by DEMEYERE are damaged, defective or incomplete, or in the event of any error, missing weight or any other type of irregularity, the Purchaser is obliged to refuse the products on delivery or to only accept them subject to a written reservation. Obvious defects must be notified to DEMEYERE in writing within 3 working days of their delivery at the latest, whilst latent defects must be notified to DEMEYERE within a week of their discovery at the latest. Claims for defects that were notified belatedly shall be excluded. Acceptance of the goods cannot be refused due to minor defects. The costs of inspecting the goods shall be borne by the Purchaser. Defective goods shall be made available for DEMEYERE to inspect on request. No goods may be returned without written permission from our management. Such permission will not in any way imply that the goods have been acknowledged by DEMEYERE as being defective or not in conformity. Goods being returned, in whatever way they are being sent, remain at the Purchaser's risk and will be sent to our warehouse, carriage free.
(2) The Purchaser will not be in a position to file any complaint, on any ground whatsoever, more than one year after delivery of the goods. This restriction shall not apply, however, if (a) a defect has been fraudulently concealed or (b) a specific warranty has been agreed for the properties and condition of the goods (in connection with this any liability provisions or limitation period arising from the warranty shall apply where appropriate).
(3) The obligations of DEMEYERE as a result of a attributable shortcoming or from any other legal ground are, at DEMEYERE’s discretion, limited to (free) repair of the defect, replacement of the defective item and / or re-performance of the services provided, or reimbursement of the amounts received from the Purchaser in connection with the poor performance, in which case the agreement is terminated as far as the poor performance is concerned. The right to a reduction of the purchase price shall be excluded. The subsequent performance shall occur without acknowledgement of a legal obligation. In the case of subsequent rectification, the remainder of the original limitation period shall begin when the rectified goods are returned. The same applies in the case of a replacement delivery. DEMEYERE will not be liable, either contractually or extra-contractually, in any circumstances, for losses caused to persons or to products, other than the products supplied or the products which form part of the service we have provided. On the contrary, the Purchaser will be obliged to indemnify us and keep us indemnified against any recovery, by anyone, in the event our liability would be invoked as a result of the mere existence of the product that has been supplied in implementation of the current agreement. This limitation of liability will also apply if, for whatever reason, our technicians offer or have offered advice, directly or indirectly, regarding the selection of the product to be used or as to how it is handled or used.
(4) The place of fulfilment for the subsequent performance shall be DEMEYERE's registered office. Claims by the Purchaser for expenses necessary for the purpose of the subsequent performance, in particular the costs of transport, travel, labour and materials, shall be excluded, unless these expenses are increased by the goods being subsequently transported to a place of delivery other than the one that was originally agreed. The costs of assembling the goods shall also be excluded. DEMEYERE shall be entitled to invoice the Purchaser for any such additional costs.
(5) DEMEYERE shall not be liable for or responsible for treating any defect or other claim which arises from (i) normal wear and tear, misuse, negligence, accident, abuse, use not in accordance with standards of proper practice and in accordance with the conditions in the quotation or normal usage conditions set out in the catalogues, manuals or handbooks supplied to the Purchaser, modification or alteration not authorised by DEMEYERE, or use in conjunction with a third party product, or (ii) Purchaser’s negligence, or (iii) the breach of Purchaser’s obligations under the agreement. DEMEYERE reserves the right to determine whether any products are defective.
(6) Our instructions for use and any guarantee contained in our promotional literature or in that of any company belonging to our group will not adversely affect the provisions stated above and will not invoke our liability.
(7) Except as expressly provided in these General Terms and Conditions of Sale, DEMEYERE shall not be liable to the Purchaser for any financial, consequential or other loss or damage caused to the Purchaser by reason of any representation, warranty (either express or implied), condition or other term, or any duty at common law; or for any special, indirect, incidental or consequential damages (including loss of profits, revenue, expected savings, use, records or data, costs of procurement of substitute products, damage to reputation or goodwill) or for any other claims for compensation however caused (whether caused by the negligence of DEMEYERE, its employees, agents, suppliers or otherwise) which arise out of or in connection with these General Terms and Conditions of Sale or a contract hereunder, even if DEMEYERE or its suppliers have been advised of the possibility of such loss, liability or damages.
(8) The Purchaser shall bear the appropriate costs of any unjustified assertion of rights arising from defects. The same shall apply if DEMEYERE erroneously grants rights arising from defects without being obliged to do so.
(9) The Purchaser is not entitled to extend or transfer the foregoing warranties to any other party. All warranties conditions or terms implied by law are hereby excluded to the extent such exclusion is permitted by law.
(10) Nothing contained herein shall be construed as excluding or limiting DEMEYERE’s liability for:
(i) personal injury or death resulting from DEMEYERE’s negligence;
(ii) its fraudulent misrepresentation; or
(iii) any matter for which DEMEYERE may not exclude its liability under applicable law.
(11) The above limitations of liability also apply for claims for damages by the Purchaser against DEMEYERE's executive bodies, executive managers, employees or agents.

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Section 9 Force majeure

(1) In the event of force majeure, such as mobilisation, war, civil war, terrorism, unrest, riots, embargoes, natural catastrophes, epidemics, fire, legislative activities, judicial decisions or measures by public authorities, or any other unforeseeable circumstances beyond DEMEYERE’s reasonable control, such as industrial disputes, strikes or lawful lockouts, disruptions to transport or operations, difficulties in procuring raw materials or delays by suppliers, DEMEYERE's fulfilment of its contractual obligations will be suspended and agreed delivery deadlines shall be extended or agreed delivery dates deferred by the duration of the hindrance plus an appropriate lead time. This also applies if such events occur at a time when DEMEYERE is already in default. DEMEYERE undertakes to notify the Purchaser of the start and the anticipated end of such events.
(2) If the hindrance lasts for six weeks or more, either Party may withdraw from the respective purchase contract through issuing a written statement.

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Section 10 Compliance with statutory provisions

(1) The Purchaser shall comply with all the relevant statutory provisions, regulatory requirements, judicial decisions and administrative orders, including the relevant provisions on import, export and export control and those preventing bribery and corruption. The Purchaser must obtain all the necessary authorisations, permits and licences in a timely manner, particularly those that are necessary for import and export, or for reselling or using the goods. In the event of a breach of the obligations set out above, the Purchaser shall indemnify DEMEYERE against third party claims.
(2) DEMEYERE may withhold the delivery from the Purchaser if there are reasonable grounds to suspect that the Purchaser might breach Section 10 (1) or if all the necessary authorisations, permits or licences have not been obtained and DEMEYERE is not responsible for this.

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Section 11 General provisions

(1) The Purchaser may not assign its rights and obligations in whole or in part without DEMEYERE's prior written consent. DEMEYERE shall be permitted to assign its rights and obligations, including, without limitation, pursuant to any receivables purchase arrangements or similar transactions which DEMEYERE may from time to time enter into.
(2) DEMEYERE shall be entitled to carry out its obligations hereunder through any agents or sub-contractors appointed by it in its absolute discretion for that purpose.
(3) The entire legal relationship between DEMEYERE and the Purchaser shall be governed by Belgian law under exclusion of the UN Convention on Contracts for the International Sale of Goods.
(4) The place of performance shall be Herentals (Belgium), unless otherwise agreed.
(5) The place of jurisdiction for any disputes arising from or in connection with a delivery shall be Turnhout (Belgium); however, DEMEYERE shall be entitled to bring an action against the Purchaser in the latter's place of business.
(6) Should any individual provision of these General Terms and Conditions of Sale be or become invalid, this shall not affect the validity of the remaining provisions.
(7) These General Terms and Conditions of Sale may be amended by DEMEYERE. DEMEYERE will inform the Purchaser about such changes via a message on the invoice, by e-mail or via written notification.

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