1. OFFER, CONFIRMATION OR AGREEMENT
- These terms and conditions of commercial sale of Ex Industries bvba apply to and form an integral part of all quotations and offers made by Ex Industries bvba, all acceptances, acknowledgements and confirmations by Ex Industries bvba of any orders by buyer and any agreements regarding the sale by Ex Industries bvba and purchase by buyer of goods and services ("Products"), unless and to the extent Ex Industries bvba explicitly agrees otherwise in writing.
- Any terms and conditions set forth on any document or documents issued by buyer either before or after issuance of any document by Ex Industries bvba setting forth or referring to these terms and conditions are hereby explicitly rejected and disregarded by Ex Industries bvba, and any such terms shall be wholly inapplicable to any sale made by Ex Industries bvba to buyer and shall not be binding in any way on Ex Industries bvba.
- Ex Industries bvba’ offers are open for acceptance within the period stated by Ex Industries bvba in the offer or, when no period is stated, within thirty (30) days from the date of the offer, but any offer may be withdrawn or revoked by Ex Industries bvba at any time prior to the receipt by Ex Industries bvba of buyer’s acceptance thereof.
2. PRODUCTS AND DESCRIPTIONS
- The technical specifications, abilities and other data, mentioned in catalogues, prospectusses, advertisements, pictures and price-lists only have an approximate indication, unless the agreement refers explicitely to them.
- Prices in any offer, confirmation or Agreement are in Euros, and are based on delivery Ex-Works (INCOTERMS latest version) from the manufacturing place within the European borders, from the location Ex Industries or another place indicated by Ex Industries bvba, unless agreed otherwise in writing between Buyer and Ex Industries bvba.
- For Agreements that don’ t exceed a total amount of 200€ VAT excl, Ex Industries will raise the total selling price with 20€ for the administrative working up, unless agreed otherwise in writing between Buyer and Ex Industries bvba.
- Unless agreed otherwise between Ex Industries bvba and buyer in writing, Ex Industries bvba may invoice buyer for the price of the products delivered upon delivery of the products in accordance with the applicable INCOTERM. Net payment is due within thirty (30) days of date of invoice unless agreed otherwise between Ex Industries bvba and buyer in writing. All payments shall be made to the designated Ex Industries bvba address. If deliveries are made in installments, each installment may be separately invoiced and shall be paid for when due. No discount is allowed for early payment unless agreed to in writing by Ex Industries bvba. In addition to any other rights and remedies Ex Industries bvba may have under applicable law, interest will accrue on all late payments at the rate of eighteen percent (18%) per annum or the applicable statutory rate, whichever is higher and to the extent permitted by applicable law, from the due date until payment in full.
- All deliveries of products agreed to by Ex Industries bvba shall at all times be subject to credit approval of Ex Industries bvba. If, in Ex Industries bvba’ judgment, Buyer’s financial condition at any time does not justify production or delivery of Products on the above payment terms, Ex Industries bvba may require full or partial payment in advance or other payment terms as a condition to delivery, and Ex Industries bvba may suspend, delay or cancel any credit, delivery or any other performance by Ex Industries bvba.
- In the event of any default by buyer in the payment of any fees or charges due, or any other default by buyer, Ex Industries bvba shall have the right to refuse performance and/or delivery of any products until payments are brought current and Ex Industries bvba may suspend, delay or cancel any credit, delivery or any other performance by Ex Industries bvba. Such right shall be in addition to, and not in lieu of, any other rights and remedies available under the agreement or at law.
5. DELIVERY AND QUANTITIES
- Products shall be delivered Ex-Works (INCOTERMS latest version) as designated by Ex Industries bvba, unless otherwise agreed in writing. Delivery dates communicated or acknowledged by Ex Industries bvba are approximate only, and Ex Industries bvba shall not be liable for, nor shall Ex Industries bvba be in breach of its obligations to Buyer, for any delivery made within a reasonable time before or after the communicated delivery date. Ex Industries bvba agrees to use commercially reasonable efforts to meet the delivery dates communicated or acknowledged by it on the condition that Buyer provides all necessary order and delivery information sufficiently prior to the such delivery date.
- Buyer will give Ex Industries bvba written notice of failure to deliver and thirty (30) days within which to cure. If Ex Industries bvba does not deliver within such thirty (30) day period, Buyer's sole and exclusive remedy is to cancel the affected and undelivered portions of the related Agreement.
- Title in the Products shall pass to Buyer upon payment in full of the purchase price, including any interest and/or expenses in respect thereof and (to the extent permitted by applicable law) payment in full of any other Products Buyer has ordered and/or payment of any claim in connection with or arising out of the Agreement. Until title in the Products has passed to Buyer, Buyer shall not assimilate, transfer or pledge any of the Products, or grant any right or title in the Products to any third party, except in the event such right or title is granted in normal course of business. Buyer shall ensure that the Products remain identifiable as Products obtained from Ex Industries bvba. Buyer shall at all times grant Ex Industries bvba (or its representative) free access to the location where Buyer has stored the Products. In the event Buyer does not fulfill its payment obligations towards Ex Industries bvba, or gives reason to believe that it will not fulfill any or part of its payment obligations, Buyer is obliged at Ex Industries bvba’ request to return to Ex Industries bvba, at Buyer’s cost, the Products in which the title has not yet passed and Buyer agrees to fully cooperate with Ex Industries bvba in order to enable Ex Industries bvba (or its representative) to collect its Products. Risk of loss in the Products shall pass to Buyer upon Ex Industries bvba' delivery in accordance with the applicable INCOTERMS.
- If Buyer fails to take delivery of Products ordered, then Ex Industries bvba may deliver the Products in consignment at Buyer’s cost.
6. FORCE MAJEURE
- Ex Industries bvba shall not be liable for any failure or delay in performance if:
- Such failure or delay results from interruptions in the Product manufacturing process; or
- Such failure or delay is caused by Force Majeure as defined below and/or by (case) law.
- In case of such a failure as set forth above, the performance of the relevant part(s) of the Agreement will be suspended for the period such failure continues, without Ex Industries bvba being responsible or liable to Buyer for any damage resulting therefrom.
- The expression "Force Majeure" shall mean and include any circumstances or occurrences beyond Ex Industries bvba' reasonable control - whether or not foreseeable at the time of the Agreement - as a result of which Ex Industries bvba cannot reasonably be required to execute its obligations including force majeure and/or default by one of Ex Industries bvba’ suppliers. In the event that the Force Majeure extends for a period of three (3) consecutive months (or in the event that the delay is reasonably expected by Ex Industries bvba to extend for a period of three (3) consecutive months), Ex Industries bvba shall be entitled to cancel all or any part of the Agreement without any liability towards Buyer.
7. RIGHTS IN SOFTWARE, DOCUMENTATION AND INTELLECTUAL PROPERTY
- Subject to the provisions set forth herein, the sale by Ex Industries bvba of any goods implies the non-exclusive and nontransferable limited license to Buyer under any of Ex Industries bvba’ and/or its affiliates’ intellectual property rights ("Ex Industries bvba’ IPR") used in the goods to use and resell the goods as sold by Ex Industries bvba to Buyer.
- To the extent that software and/or documentation is embedded in or delivered with any goods sold by Ex Industries bvba to Buyer, the sale of such goods shall not constitute the transfer of ownership rights or title in such software and/or documentation to Buyer, but, subject to the provisions set forth herein, shall only imply a non-exclusive and nontransferable license to Buyer under Ex Industries bvba IPR used in the software to use such software and/or documentation in conjunction with and as embedded in or delivered with the goods as supplied by Ex Industries bvba to Buyer.
- Notwithstanding anything to the contrary herein, these Terms and Conditions shall not be construed as conferring any right, license or immunity, either directly or by implication, estoppel or otherwise to Buyer or any third party under any Ex Industries bvba IPR or intellectual property rights of any third party other than explicitly granted under these Terms and Conditions.
- Buyer shall not:
- Modify, adapt, alter, translate, or create derivative works from any software residing in or provided by Ex Industries bvba in conjunction with any goods;
- Assign, sublicense, lease, rent, loan, transfer, disclose, or otherwise make available such software;
- Merge or incorporate such software with or into any other software; or
- Reverse assemble, decompile, disassemble, or otherwise attempt to derive the source code for such software without written authorization from Ex Industries bvba except as explicitly allowed under applicable law.
- Buyer shall reproduce, without any amendments or changes thereto, any proprietary rights legends of Ex Industries bvba and/or its affiliates or its third party suppliers in any software or documentation provided by Ex Industries bvba. If and to the extent copyright in the software is owned by third parties, the license terms of these third parties shall apply instead of the present Terms and Conditions to such third party software.
8. LIMITED WARRANTY AND DISCLAIMER
- Ex Industries bvba warrants that under normal use in accordance with the applicable user manual the Products, (excluding any software that is not embedded in or delivered with any goods by Ex Industries bvba or software which is subject to copyright owned by a third party) shall, at the time of delivery to Buyer and for a period of twelve (12) months from the date of delivery (or such other period as may be agreed upon in writing by the parties, or as communicated in writing at sale by Ex Industries bvba), be free from defects in material or workmanship and shall substantially conform to Ex Industries bvba’ specifications for such Product, or such other specifications as Ex Industries bvba has agreed to in writing, as applicable. Labor costs, (de)mounting and/or (de)installation are excluded from this warranty. Ex Industries bvba’ sole and exclusive obligation, and Buyer’s sole and exclusive right, with respect to claims under this warranty shall be limited, at Ex Industries bvba’ option, to (1) repair or (2) provide a replacement of the defective or non-conforming Product or (3) to an appropriate credit for the purchase price thereof. Ex Industries bvba will have a reasonable time to repair, replace or credit. Ex Industries bvba is entitled at its option to replace the defective or non-conforming Product(s) with a product that has minor deviations in design and/or specifications not affecting the functionality of the agreed Product(s). The non-conforming or defective Products shall become Ex Industries bvba' property as soon as they have been replaced or credited.
- Buyer may ship Products returned under warranty to Ex Industries bvba’ designated facility only in conformance with Ex Industries bvba’ then-current return material authorization policy. Where a warranty claim is justified, Ex Industries bvba will pay for freight expenses. Buyer shall pay for returned Products that are not found to be defective or nonconforming together with the freight, testing and handling costs associated therewith.
- Notwithstanding the foregoing, Ex Industries bvba shall have no obligations under warranty if the alleged defect or non-conformance is found to have occurred as a result of environmental or stress testing, misuse, use other than as set forth in the applicable user manual, neglect, improper installation or accident, or as a result of improper repair, alteration, modification, storage, transportation or improper handling.
- Subject to the applicable mandatory law, the express warranty granted above shall extend directly to Buyer only and not to Buyer’s customers, agents or representatives and is in lieu of all other warranties, whether express or implied, including without limitation any implied warranties of fitness for a particular purpose, merchantability, or non-infringement of intellectual property rights. All other warranties are hereby specifically disclaimed by Ex Industries bvba.
- Subject to the exclusions and limitations set forth in Section 9 of the Terms and Conditions, the foregoing states the entire liability of Ex Industries bvba and its affiliates in connection with defective or non-conforming Products supplied hereunder.
9. LIMITATION OF LIABILITY
- Ex Industries bvba shall not be liable for any lost profits, lost savings, loss of reputation, loss of goodwill, indirect, incidental, punitive, special or consequential damages arising out of or in connection with the agreement or the sale of any product or service by Ex Industries bvba or the use thereof whether or not such damages are based on tort, warranty, contract or any other legal theory, even if Ex Industries bvba has been advised, or is aware, of the possibility of such damages. Ex Industries bvba’s aggregate and cumulative liability towards buyer under any agreement shall not exceed an amount of ten percent (10%) of the related agreement.
- Any Buyer’s claim for damages must be brought by Buyer within ninety (90) days of the date of the event giving rise to any such claim, and any lawsuit relative to any such claim must be filed within one (1) year of the date of the claim. Any claims that have been brought or filed not in accordance with the preceding sentence are null and void.
- The limitations and exclusions set forth above in this Section 9 shall apply only to the extent permitted by applicable mandatory law.
- Buyer acknowledges that all technical, commercial and financial data disclosed to Buyer by Ex Industries bvba and/or its affiliates is the confidential information of Ex Industries bvba and/or its affiliates. Buyer shall not disclose any such confidential information to any third party and shall not use any such confidential information for any purpose other than as agreed by the parties and in conformance with the purchase transaction contemplated herein.
11. ASSIGNMENT AND SETOFF
- Buyer shall not assign any rights or obligations under the Agreement without the prior written consent of Ex Industries bvba. Buyer shall have no right to withhold or reduce any payments or to offset existing and future claims against any payments due for Products sold under the Agreement or under any other agreement that Buyer may have with Ex Industries bvba or any of its affiliates may have and agrees to pay the amounts hereunder regardless of any claimed offset which may be asserted by Buyer or on its behalf.
12. GOVERNING LAW AND FORUM
- All offers, confirmations and Agreements are governed by and construed in accordance with the laws of Belgium. All disputes arising out of or in connection with any Agreement shall first be attempted by Buyer and Ex Industries bvba to be settled through consultation and negotiation in good faith in a spirit of mutual cooperation. All disputes which cannot be resolved amicably shall be submitted to the exclusive jurisdiction of the courts of Gent, Belgium, provided that Ex Industries bvba shall always be permitted to bring any action or proceedings against Buyer in any other court of competent jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to any offer, confirmation or Agreement. Nothing in this Section 11 shall be construed or interpreted as a limitation on either Ex Industries bvba’ or Buyer’s right under applicable law for injunctive or other equitable relief or to take any action to safeguard its possibility to have recourse on the other party.
13. BREACH AND TERMINATION
- Without prejudice to any rights or remedies Ex Industries bvba may have under the Agreement or at law, Ex Industries bvba may, by written notice to Buyer, terminate with immediate effect the Agreement or any part thereof without any liability whatsoever, if:
- Buyer violates or breaches any of the provisions of the Agreement;
- Any proceedings in insolvency, bankruptcy (including reorganization) liquidation or winding up are instituted against Buyer, whether filed or instituted by Buyer, voluntary or involuntary, a trustee or receiver is appointed over Buyer, or any assignment is made for the benefit of creditors of Buyer; or
- The control or ownership of Buyer changes. Upon occurrence of any of the events referred to above, all payments to be made by Buyer under the Agreement shall become immediately due and payable. In the event of cancellation, termination or expiration of an Agreement, the terms and conditions destined to survive such cancellation, termination or expiration shall so survive.
- In the event that any provision(s) of these general terms and conditions of sale shall be held invalid or unenforceable by a court of competent jurisdiction or by any future legislative or administrative action, such holding or action shall not negate the validity or enforceability of any other provisions thereof. In the event that any provision of these general terms and conditions of sale shall finally be determined to be unlawful or unenforceable, such provision shall be deemed severed from these general terms and conditions of sale, but every other provision shall remain in full force and effect, and in substitution for any such provision held unlawful or unenforceable, there shall be substituted a provision of similar import reflecting the original intent of the clause to the extent permissible under applicable law.
- The failure on the part of either party to exercise, or any delay in exercising, any right or remedy arising from the agreement shall not operate as a waiver thereof; nor shall any single or partial exercise of any right or remedy arising there from preclude any other or future exercise thereof or the exercise of any other right or remedy arising from the agreement or from any related document or by law.