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.