INNOVAD: TERMS AND CONDITIONS OF SALE
CONTROLLING PROVISIONS: No terms and conditions other than the terms and conditions contained herein shall be binding upon Seller unless accepted by it in a writing signed by the Seller’s Manager. All terms and conditions contained in any prior oral or written communication, including, without limitation, Buyer’s purchase order, which are different from or in addition to the terms and conditions herein are hereby rejected and shall not be binding on Seller, whether or not they would materially alter this document, and Seller hereby objects thereto. All prior proposals, negotiations and representations, if any, are merged herein. Buyer will be deemed to have assented to all terms and conditions contained herein if any part of the goods and/or services described herein are shipped or an invoice is presented in connection with the said goods and/or services.
TERMS: Buyer agrees to pay for the products according to the Seller’s payment terms. In the event Buyer fails to make any payment to Seller when due, Buyer’s entire account(s) with Seller shall become immediately due and payable without notice or demand. Any amount unpaid on the due date shall, automatically and without prior notice, attract interest at a rate of 15% per annum. Seller reserves the right to increase by 10% the amount of any invoice unpaid on the due date, as an indemnification, however without prejudice of the right of Seller to a refunding of legal costs, to a reasonable compensation for all relevant recovery costs and to possible other refunding on basis of the applicable legal provisions.
DELIVERY: Seller will make a good faith effort to complete delivery of the products as indicated by Seller in writing, but Seller assumes no responsibility or liability and will accept no back charge for loss or damage due to delay or inability to deliver, whether or not such loss or damage was made known to Seller, including, but not limited to, liability for Seller’s non-performance caused by acts of God, war, labor difficulties, accidents, inability to obtain materials, delays of carriers, contractors or suppliers or any other causes of any kind whatever beyond the control of Seller. Under no circumstances shall Seller be liable for any special, consequential, incidental, indirect, or liquidated damages, losses, or expense (whether or not based on negligence) arising directly or indirectly from delays or failure to give notice of delay.
RETENTION OF TITLE: Until full payment is received by Seller for all products supplied to Buyer, as well as all other amounts owing to Seller by Buyer: (a) legal title and property in all products supplied by Seller remain vested in Seller and do not pass to Buyer; (b) Buyer must keep the goods separate from other goods and maintain the labeling and packaging of the Seller so that they are readily identifiable as the property of Seller, however failure to comply with these requirements will not affect the Sellerís title and property to the products; (c) the risk in the products and all liability to third parties in respect thereof shall pass to Buyer upon tender of the products to Buyer, Buyer’s representative, or common carrier.
REMEDIES OF SELLER: Buyer agrees that any of the following shall constitute an event of default which shall enable Seller, at its option, to cancel any unexecuted portion of any order or to exercise any right or remedy which it may have by law: (a) the failure of Buyer to perform any term or condition contained herein; (b) any failure of Buyer to give required notice; (c) the insolvency of Buyer or its failure to pay debts as they mature, an assignment by Buyer for benefit of its creditors, the appointment of receiver for Buyer or for the materials covered by any order or the filing of any petition to adjudicate Buyer bankrupt; (d) the death, incompetence, dissolution or termination of existence of Buyer; (e) a failure by Buyer to provide adequate assurance of performance within ten (10) days after a justified demand by Seller or (f) if Seller, in good faith, believes that Buyer’s prospect of performance under this Agreement is impaired. All rights and remedies of Seller herein are in addition to, and shall not exclude, any rights or remedies that Seller may have by law. Upon default by Buyer, Buyer agrees to reimburse Seller all attorney fees and court costs incurred by Seller in connection therewith.
PERMITS: The Buyer shall at its own expense apply for and obtain any permits and inspections required for the installation and/or use of the products. Seller makes no promise or representation that the products or services will conform to any local laws ordinances, regulations, codes or standards, except as particularly specified and agreed upon in writing by an authorized representative of Seller.
WARRANTY: THE BUYER’S SOLE AND EXCLUSIVE WARRANTY, IF ANY, IS THAT PROVIDED IN WRITING TOGETHER WITH THE PRODUCTS. SELLER MAKES NO IMPLIED WARRANTIES AND HEREBY DISCLAIMS ALL IMPLIED WARRANTIES, WHETHER IMPLIED BY OPERATION OF LAW OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ALL IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS OR FITNESS FOR A PARTICULAR PURPOSE. ALL PRODUCTS AND/OR SERVICES PROVIDED BY SELLER AND ITS EMPLOYEES AND AGENTS ARE PROVIDED “AS IS,” “WHERE IS”, AND “WITH ALL FAULTS”.
RECOMMENDATIONS BY SELLER: Any recommendations made by Seller concerning the use, design, application or operation of the products shall not be construed as representations or warranties, expressed or implied. Failure by Seller to make recommendations or give advice to Buyer shall not impose any liability upon Seller.
LIABILITY AND INDEMNIFICATION: Under no circumstances, and in no event, will Seller be liable for personal injury or property damage or any other incidental, punitive, special, consequential or liquidated damages of any kind, whether based upon warranty, contract, strict liability, negligence or any other cause of action arising in connection with the design, manufacture, sale, transportation, installation, use or repair of the products sold by Seller. Seller shall under no circumstance be responsible for any losses or damages sustained by the Buyer or any other person as a result of improper use or misapplication of the products. Buyer hereby acknowledges and agrees that under no circumstances, and in no event, shall Seller’s liability, if any, exceed the net sales price of the defective product(s); no additional indemnity shall be paid for the labor or expense of repairing or replacing defective products or workmanship or damage resulting from the same. Buyer shall defend, indemnify and hold harmless Seller and its agents and employees against any loss, damage, claim, suit, liability, judgment or expense (including, without limitation, attorney’s fees) arising out of or in connection with any injury, disease or death of persons (including, without limitation, Buyer’s employees and agents) or damage to or loss of any property or the environment, or violation of any applicable laws or regulations resulting from or in connection with the sale, transportation, installation, use, or repair of the products by Buyer or from the information, designs, services or other work supplied to Buyer, whether caused by the concurrent and/or contributory negligence of Buyer, Seller, or any of their agents, employees or suppliers. The obligations, indemnities and covenants contained in this paragraph shall survive the consummation or termination of the agreement between parties.
INSPECTION AND ACCEPTANCE: Claims for damage, shortage or errors in shipping must be reported within three (3) days following delivery to Buyer. Buyer shall have seven (7) days from the date Buyer receives any products to inspect such products and services for defects and nonconformance which are not due to damage, shortage or errors in shipping and notify Seller, in writing, of any defects, nonconformance or rejection of such products. After such seven (7) day period, Buyer shall be deemed to have irrevocably accepted the products, if not previously accepted. After such acceptance, Buyer shall have no right to reject the products for any reason or to revoke acceptance. Buyer hereby agrees that such seven (7) day period is a reasonable amount of time for such inspection and revocation. Buyer shall have no right to order any change or modification to any product or service previously ordered by Buyer or its representatives or cancel any order without Seller’s written consent and payment to Seller of all charges, expenses, commissions and reasonable profits owed to or incurred by Seller. The sole and exclusive remedy for products alleged to be defective in workmanship or material will be the replacement of the products subject to the Seller’s inspection and warranty.
RETURNS: Seller does not accept any return of goods after leaving its premises but Buyer may return, if Seller accepts the return in writing, any product which Seller accepts with no restocking charge if: (i) it is in new condition, suitable for resale in its undamaged original packaging and with all its original marks and (ii) it has not been used, modified, reconditioned, repaired, altered or damaged and (iii) meets all Quality parameters for the type of product that can be sold or put into transit in the country in which the product is being returned. Buyer’s surplus job returns, and those not meeting (i), (ii) and (iii), above, will be evaluated on an individual basis after Buyer has contacted Seller’s authorized representative for prior written permission. Special orders or non-stock items may be returned if Seller accepts the return in writing. Except for items which meet (i), (ii) and (iii), above, credit memoranda issued for authorized returns shall be subject to the following deductions: (a) cost of putting items in salable condition; (b) transportation charges, if not prepaid; and (c) handling and restocking charges. Specially fabricated products may not be canceled or returned, and no refund will be made.
SHIPMENTS: All products are shipped F.O.B., point of shipment. Risk of loss shall transfer to the Buyer upon tender of goods to Buyer, Buyer’s representative, or common carrier. The cost of any special packing or special handling caused by Buyer’s requirements or requests shall be added to the amount of the order. If Buyer causes or requests a shipment delay, or if Seller ships or delivers the products erroneously as a result of inaccurate, incomplete or misleading information supplied by Buyer or its agents or employees, storage and all other additional costs and risks shall be borne solely by Buyer. Claims for products damaged or lost in transit should be made by Buyer to the carrier, as Seller’s responsibility ceases upon tender of the products to Buyer, Buyer’s representative or common carrier.
TAXES: The amount of any sales, excise or other taxes, if any, applicable to the products shall be for the account of Buyer and will be added to the purchase price and shall be paid by Buyer unless Buyer provides Seller with an exemption certificate acceptable to the taxing authorities. Any taxes which Seller may be required to pay or collect under any existing or future law, upon or with respect to the sale, purchase, delivery, storage, processing, use or consumption of any of the products, including taxes upon or measured by the receipts from the sale thereof, shall be for the account of the Buyer, who shall promptly pay the amount thereof to Seller upon demand.
SEVERABILITY: These terms and conditions of sale shall not be construed against the party preparing them, but shall be construed as if all parties jointly prepared these terms and conditions of sale and any uncertainty or ambiguity shall not be interpreted against any one party. If any provision hereof is held to be illegal, invalid or unenforceable under any present or future laws, such provision shall be fully severable and the terms and conditions herein shall be construed and enforced as if such illegal, invalid or unenforceable provision had never been made a part hereof. The remaining provisions herein shall remain in full force and effect and shall not be affected by such illegal, invalid or unenforceable provisions or by their severance here from.
SET-OFF: Buyer shall not be entitled to set-off any amounts due Buyer against any amounts due Seller.
CERTIFICATIONS: Seller will provide all necessary certification requirements; any special certification needed should be requested by Buyer prior to placing final order. Seller by no means will be involved or liable for failure of Buyer to import the product locally.
NON-WAIVER: Seller’s failure to insist upon the strict performance of any term or condition herein shall not be deemed a waiver of any of Seller’s rights or remedies hereunder, nor of its right to insist upon the strict performance of the same or any other term herein in the future. No waiver of any term or condition hereunder shall be valid unless in writing and signed by Seller’s Manager.
ENTIRE AGREEMENT: This document constitutes the entire, complete, and exclusive agreement between the parties with respect to the subject matter hereof and contains all the agreements and conditions of sale; no course of dealing or usage of the trade shall be applicable unless expressly incorporated herein. The terms and conditions contained herein may not be added to, modified, superseded or otherwise altered except by a written modification signed by the Seller’s Manager. All transactions shall be governed solely by the terms and conditions contained herein.
GOVERNING LAW: These terms and conditions shall be governed in all respects by the laws of Belgium, excluding choice of law provisions and the Vienna Convention on contracts for the international sale of goods.
JURISDICTION: Seller and Buyer submit to the exclusive jurisdiction of the courts sitting in Antwerp (Belgium), and waive any jurisdictional, venue, or inconvenient forum objections to such courts.