General conditions of sale Promeco NV

1. General provisions

The following general conditions apply to all price quotes sent by and all contracts relating to all the sales of goods and services concluded with Promeco NV, enterprise number 0454.546.354, with registered offices in Belgium, 8510 Bellegem, Doornikserijksweg 12, and any present and future company related to it, including but not limited to Belginova N.V., Probalco BVBA., Boxter BVBA and Optakare N.V.  (hereinafter referred to as: “Promeco”), irrespective of whether the customer’s domicile or registered office is located in Belgium or abroad, and irrespective of whether the delivery has to be made in Belgium or abroad.

Any deviation of and/or addition to these general conditions of sale shall only be possible by means of a prior agreement in writing signed between Promeco and the customer’s authorized representative.

By placing an order with Promeco, the customer declares to have read and understood the general conditions of sale, to agree entirely and irrevocably with their content and their applicability to all legal relationships with Promeco, and  the customer will expressly and irrevocably renounce any of its own general terms and conditions (of purchase), even if its own general terms and conditions (of purchase) had been communicated prior to the communication of the present general conditions of sale. Promeco reserves the right to amend these general conditions of sale at any time.

 

2. Price quote

All price quotes issued by Promeco are obligation-free, unless expressly stated otherwise in the price quote. Unless expressly stated otherwise in the price quote, an agreement between Promeco and the customer will only come into being once Promeco has accepted the customer’s order in writing by way of an order confirmation or by another document signed by Promeco. Price quotes from Promeco are valid for 1 month from the first day following the date of the price quote, except where a different period is expressly stated in the price quote.

In the event the confirmed order is not related to any saving campaign, the customer, in case an order is cancelled by the customer, will owe an amount equal to 20% of the agreed price as a lump sum compensation, without prejudice to the right of Promeco to claim a higher compensation, subject to proof of the higher actual damage suffered.

In case the customer cancels an order that was confirmed Promeco in the event of a saving campaign, the customer shall be held to purchase and pay the entire basic order as laid down in the mentioned order, as well as to pay any promotional materials provided to this customer, such as saving cards and posters, all of this by law and without prior notice of default and without prejudice to the right of Promeco to prove higher damage.

The customer undertakes to keep strictly confidential any information mentioned in the price quotes, invoices and price lists of Promeco.

 

3. Prices and additional costs

Any price lists, technical data, indications about weights and dimensions circulated by Promeco, and in general any specifications provided by Promeco are purely indicative and do not bind Promeco. The prices mentioned in the order confirmations or in any other agreement signed between Promeco and the customer are based on the values of wages and materials at that time. In case one or more cost price factors (including but not limited to labour costs, prices of raw materials and energy) are increased, Promeco shall be entitled to proportionally increase the agreed prices. Unless otherwise agreed upon in writing, the prices mentioned in the price lists, order confirmations, agreements, … are exclusive of VAT and transport, packing and insurance costs. Any duties, taxes and/or levies of whatever nature, relating to the delivered goods or their transportation, including new duties, taxes and levies introduced after the conclusion of the contract, shall be borne in full by the customer.

 

4. Delivery and taking back of the goods

Unless otherwise agreed upon in writing, the delivery of the goods shall take place EX WORKS (Incoterms 2010). The customer is obliged to pick up the goods at the predetermined delivery dates. At the reception of the goods, the customer shall sign the delivery order mentioning his name and “for receipt of the goods”. In case, for whatever reason, the goods have not been picked up by the customer on the delivery date, the goods concerned shall be stored for a limited period of time by Promeco at the customer’s risk and expense.

Irrespective of the foregoing, Promeco and the customer may agree that Promeco shall arrange for the transport. In that case, the risk of storage, loading, carriage and unloading shall be borne by the customer as well. The delivery shall take place at a location agreed upon with the customer. Unless otherwise agreed upon in writing, the goods are delivered in their packaging, at the gate, except where agreed otherwise in advance in a written agreement with Promeco. The customer will guarantee unimpeded access for the goods.

The customer will itself be responsible for removing the packaging from the goods and/or for any additional assembly or installation work, unless agreed otherwise in advance in a written agreement with Promeco.

The delivery lead times stated by Promeco are provided purely as an indication and are non-binding. Under no circumstances will delivery made after the lead-time stated amount to entitlement for the agreement to be cancelled, or for the price to be reduced or for any form of compensation to be paid by Promeco. Promeco is not held to pay any compensation for damage that may result from late delivery.

Promeco expressly reserves the right to proceed with partial deliveries constituting as many partial sales. Under no circumstances will any such partial delivery justify the refusal to pay for the delivered goods.

Taking back unsold and undamaged goods at the end of a (saving) campaign, shall only be possible provided this is expressly provided in a written agreement signed by Promeco and provided the request for return was sent to Promeco 1 month prior to the end date of the (saving) campaign concerned. The customer is aware and accepts that Promeco shall never take back more than 100 items and that, moreover, only the goods of the client’s last order, which are still the unopened and original packaging, shall qualify to be taken back. The price to which Promeco takes back the goods may be lower than the price to which the goods were sold to the customer in case the value of the goods has diminished. In addition, this take back shall under no circumstance be applicable to the basic order, which, as a consequence, is fixe and cannot be returned. In case the customer does not perform the (saving) campaign during the agreed period and/or ends the (saving) campaign prior to the agreed end date, the customer will be held to purchase and pay the entire basic order as well as to indemnify Promeco for any costs incurred for the printing of the promotional material, such as saving cards and posters.

 

5. Invoicing, payment terms and interest

Promeco’s invoices are payable at its registered offices. Unless otherwise agreed upon in writing with Promeco, any payment due by the customer shall be made within a period of time of eight days as from the day following the invoice date.

Unless otherwise agreed upon, the payments shall be made in EURO. The invoices shall be paid net. Promeco’s representative do not have the power to receive amounts of money. Discounts for immediate payments shall only be granted provided this has been agreed upon between the parties in advance and in writing. All costs related to the payment shall be borne by the customer.

Any complaints relating to the content of our invoices shall be addressed in writing to the registered offices of Promeco within eight days as from the first day following the invoice date. After the expiry of this term, if no complaint has been lodged in writing, the invoice shall be deemed to have been definitively accepted. Challenging the invoices does not release the customer of his payment obligation.

In the event of non-payment of an invoice or part thereof by the due date (i) Promeco has the right, without prior authorisation by court and without prior notice of default, to terminate the contract with the customer with immediate effect and to take back the delivered goods in accordance with article 6, (ii) Promeco has the right, without prior authorisation by court and without prior notice of default, to suspend its outstanding undertakings vis-à-vis the customer with immediate effect until such time as payment has been made in full, (iii) any other amounts that the customer may owe to Promeco will become due for payment by right and without serving prior notice of default, (iv) the customer will by right and without prior notice of default owe a late payment interest of 12% for the started month on the total amount of the invoice (including VAT) with a minimum of 50 EUR, and, in addition, the outstanding balance will in any case be increased, also by right and without prior notice of default, by a lump sum compensation of at least 15% of the total invoiced amount including VAT (with a minimum of 50 EUR), even in case the granting of a payment plan, without prejudice to the right of Promeco to claim higher damages by demonstrating a higher amount of damages.

If the trust in the customer’s solvency is betrayed which, as a consequence, questions the proper fulfilment of the customer’s commitments and/or make them impossible, such as the non-payment or late payment of invoices, judicial acts and/or other apparent occurrences, Promeco reserves the right, even if all or part of the goods have been sent, to suspend all or part of the order and to request advance payments for each order that still has to be carried out, or to request security, in the absence of which Promeco shall be entitled to unilaterally terminate the contract or to cancel all or part of the order, without the customer being entitled to any compensation, without prejudice to the right of Promeco to claim damages.

Each payment shall be deemed to be payment of any outstanding interest and/or costs; only after full payment thereof will a payment be regarded as payment of the oldest outstanding invoice, irrespective of any statement to the contrary made upon the payment

Without notification to the customer, Promeco shall be entitled to offset any claims on the customer for whatever order, contract or performance, regardless if the amounts have been contested by the customer, to any amounts owed by Promeco to the customer. Setoff on the part of the customer is explicitly excluded. In case of late or incomplete delivery, performance or payment by Promeco, the customer shall under no circumstance be entitled to the suspension of any payment within the framework of any contract whatsoever.

 

6. Retention of title

The delivered goods remain the exclusive property of Promeco at all times until such time as payment has been made in full by the customer of the selling price, including VAT, as well as any associated amounts and interest owed. The retention of title applies to all goods that are still in possession of the customer, even if they have been paid for. Until payment has been made in full, the customer is forbidden to alienate the goods concerned in any way, or to settle any form of (business) security on them, alter their nature or have control over them in any other way. Should this however be the case, the customer shall unconditionally and irrevocably transfer to Promeco, who accepts, any claims it has on third parties as a result of the sale of the goods, which are Promeco’s property. The customer also acknowledges that Promeco at all times has the right to take the goods back until such time as they have been paid for in full.

Prior to the payment in full mentioned above, the customer shall place a mark on the goods, clearly and legibly indicating that the delivered goods remain the property of Promeco. The customer has a duty of care with regard to the goods covered by the retention of title and must store them in a perfect condition in a suitable and clean place and keep them according to the highest standards and safety requirements which are standard in the sector. Insofar as is necessary this clause is deemed to have been repeated for every delivery. The customer undertakes to notify Promeco immediately by means of a registered letter of any seizure levied by a third party on the sold goods. The advances paid by the customer remain acquired as compensation for possible losses in case resale. The risks associated with the goods will be fully transferred to the customer from the moment the goods have been put at his disposal.

In the event of the bankruptcy of the customer, the terms of retention of ownership set out in this article 6 will apply in full.

 

7. Liability, late delivery

Immediately upon receipt of the delivered goods, the customer will check the goods for their usability, marketability, composition and any other relevant characteristics as well as, where applicable, their conformity with the specific characteristics as provided in the special conditions. In case the customer refuses the delivery of the goods, the customer will in any case pay to Promeco the transport costs relating to the goods incurred by Promeco. Any complaints and comments relating to the delivered goods and/or services should be sent to the registered offices of Promeco within 48 hours after the delivery date of the goods and/or services concerned and, in any case, prior to the use or the resale of the goods. After the expiry of this term, if no complaint has been lodged in writing, the delivery will be deemed to have been definitively accepted. The use or resale of the delivered goods, even prior to the expiry of said 48 hours, shall irrefutably constitute acceptance of the delivery. At the risk of lapse, complaints relating to hidden defects in the delivered goods must be lodged in writing at the registered office of Promeco within eight calendar days after the discovery of the hidden defect. The short period stated in article 1648 of the Civil Code between the parties is 2 months from discovery of the hidden defect. Moreover, complaints relating to visible and hidden defects do not suspend the customer’s payment obligation.

In terms of any damage caused by goods that are delivered with defects, Promeco is only liable under the legal obligations imposed by the relevant law in effect. Promeco will only be liable for damages caused by the defective goods/services that Promeco produces, installs and/or delivers, or for damages for the non-performance of its contractual obligations, if and insofar these damages are caused by fraud, deception or intentional fault.

Promeco will not be liable for any other fault (including gross negligence). Unless otherwise imposed by compelling legal requirements, Promeco’s warranty will be limited, at the discretion of Promeco, either to replacing the goods, which, after having received the written complaint mentioned above, are recognized by Promeco as being defective, within the term deemed necessary by Promeco, or to taking back said defective goods by crediting the invoice in question. Any costs resulting from this replacement or take back, including but not limited to postage, customs fees, etc. …, shall be borne by the customer. Under no circumstances can the application of the warranty lead to any form of compensation whatsoever. In any case, Promeco’s liability shall be limited to the agreed price, exclusive of VAT, paid by the customer, for the part of the goods covered by the liability. In case the damage is covered by an insurance, Promeco’s liability shall in any case be limited to the amount that is actually paid by its insurer. Under no circumstances is Promeco liable for any form of indirect damage, including but not limited to consequential damage, lost profits, lost savings, restrictions on production, administrative and staff costs, increase of general costs, loss of customers, third party claims or damage inflicted on third parties. Insofar as Promeco depends on the cooperation, services and supplies from third parties in order to comply with its commitments, Promeco cannot be held liable for any damage resulting from their fault, including fraud, deception gross negligence or intentional fault. For anything not belonging to its production, the duration and the extent of the warranty of Promeco shall be limited to the warranty from which Promeco benefits with its producer or its supplier (back-to-back).  The warranty obligation with regards to faults in the delivered goods does not extend beyond that of Promeco’s suppliers. In addition, Promeco does not accept any liability if the goods in question (i) have been modified by the customer or by third parties, or (ii) if the goods have not been used for the purpose they were intended.

The customer shall safeguard Promeco against possible claims filed by third parties who may sustain damage in connection with the execution of the agreement, and of which the cause, in accordance with article 7 of the present general conditions of sale, is not imputable to Promeco. In case Promeco does receive a claim in this respect, the customer shall be held to assist the Promeco in both extrajudicial and judicial proceedings, and do anything without delay to completely safeguard Promeco. In the event the customers fails to take adequate measures, Promeco shall be entitled, without and prior notice of default, to take such measure itself. All costs and damages suffered by Promeco and third parties as a result thereof, will be at the expense and risk of the client

Unless expressly agreed upon otherwise between the parties, Promeco shall not be to be aware or take account of the specific applications for which the customer wishes to use the purchased goods and/or services.

 

8. Cancellation

Promeco has the right to suspend or terminate, in whole or in part, the agreement with the customer at any time, with immediate effect, without prior notice, without prejudice to Promeco’s right to claim damages (i) should the customer be in a position of insolvency, bankruptcy, apparent insolvency, dissolution or liquidation, or (ii) in the event of control over the customer (in the sense of article 5 of Company Law) being modified directly or indirectly, or (iii) if the customer fails to meet its obligations to Promeco or fails to meet them in good time, completely or in an appropriate fashion, or (iv) if the force majeure remains in existence for longer than 60 days, or (v) if, in connection with the performance of the Agreement or in any other connection, the customer behaves in such a way that the Promeco’s confidence in the relationship is totally disturbed, or that Promeco cannot be reasonably expected to continue the relationship, or (vi) in case of a serious default by the customer for not complying with one of its essential obligations. All claims which Promeco might have, or acquire on the customer, shall be immediately due and payable in full. In that case Promeco shall have the right to keep any advances paid as partial damages, irrespective of the right of Promeco to claim higher damages.

If the contract is terminated with immediate effect as mentioned above, Promeco shall not be obliged to provide compensation in any form. Except if the contract is terminated as a result of force majeure, the customer is bound to indemnify Promeco against any claims from third parties resulting from termination. The customer shall immediately reimburse the costs already incurred and monies unduly paid by Promeco, without prejudice to Promeco’s right to claim full compensation.

Promeco can terminate the contract at any time without reasonable cause and without paying any compensation, by means of a registered letter subject to a notice period of one month as from the date of the postmark.

 

9. Force majeure

In the event of force majeure on the part of Promeco, Promeco’s undertakings vis-à-vis the customer will be suspended until such time as the situation of force majeure has passed, even if that circumstance could have been foreseen at the date of conclusion of the agreement. The term force majeure is understood to mean, among other things, strikes, transport problems, delays in transport, errors or delays attributable to third parties, exhaustion of stocks, shortage of raw materials, electrical disorders, malfunction of information technology, internet or telecommunication disruptions, authorities’ decisions or interventions, contagious diseases or high absenteeism, loss of goods caused by accidents, breakdown of machinery, fire, lockouts, floods, etc. … Promeco is not obliged to prove the non-attributable and unforeseeable character of the circumstance constituting the case of force majeure. Moreover, Promeco shall not be liable for the non-execution or defective execution of its commitments in case said non-execution or defective execution relate to the changed economic or other circumstances which were not foreseen by Promeco at the time of the conclusion of the contract, which renders the execution of the sales agreement, concluded between the parties, significantly difficult or impossible. If the force majeure case lasts longer than 60 consecutive days, Promeco shall have the right to terminate the contract without prior judicial authorization, without Promeco having to pay any compensation whatsoever to the customer.

 

10. Intellectual property rights

Promeco (or its licensor, where appropriate) is and will remain the party entitled to all industrial, intellectual and similar property rights (“Intellectual Property Rights) relating to the delivered goods. The order or sale of such goods or payment of the invoice for them may never result in a transfer of any intellectual property right. All Intellectual Property Rights relating to objects, drawings, moulds, texts, materials, designs, sketches, models and so forth, either or not patentable, produced by Promeco or any of its employees by order of the client, or otherwise obtained or created within the framework of the contract, shall remain with Promeco as from the moment these rights have arisen. Unless otherwise agreed upon in writing and in advance with Promeco, Promeco’s trademarks and/or other signs that refer in any way to Promeco and/or its goods or services, shall not be removed from or made invisible on the delivered goods by the customer. The customer undertakes not to infringe on the Intellectual Property Rights of Promeco (or its licensor, where appropriate), which means amongst others, without limitation, that the customer shall not counterfeit, multiply or make copies or allow it to be used in a way that violates the aforementioned rights

Any materials, designs, plans, drawings, auxiliary materials and other documents (hereinafter referred to as: “Documents”) either or not covered by the Intellectual Property Rights of Promeco or its licensor, which are transferred to the customer by Promeco for the delivery of goods and/or services for the benefit of the customer, shall at all time remain the exclusive property of Promeco and shall not be used for any other purpose than execution of the contract. Promeco (or its licensor, where appropriate) is and will remain the party entitled to all Intellectual Property Right relating to the Documents and the transfer of the Documents to the customer shall never result in the transfer of any intellectual property right relating to the Documents. The customer undertakes to give the Documents back to Promeco upon first request, and to refrain from using the Documents within the framework of its relationship with third parties.

The customer will notify Promeco immediately in writing if the customer obtains knowledge of an infringement of Promeco’s Intellectual Property Rights (or those of its licensors, where appropriate) and, when first requested to do so by Promeco, will hand over all information of value in that regard. If a third party claims that Promeco’s materials, goods or services (or those of its licensors, where appropriate) constitute an infringement of its rights, the customer undertakes to notify Promeco immediately in writing or otherwise relinquish any other recourse over Promeco. In such a case, Promeco will either attempt to obtain the right for the customer to continue using these materials, goods and/or services, or modify or replace the offending materials, goods and/or services in order to put an end to the infringement of the third parties’ rights without any possible recourse or claim for damages on the part of the customer.

 

11. Confidentiality

The customer undertakes to observe the confidentiality of all confidential business information, knowhow, plans, designs, drawings, schemes and other company data of Promeco, its contacts, agents and/or its affiliated companies, which is acquired from Promeco in the context of an agreement with Promeco or via any other source, and not to make available, disclose or otherwise make accessible this information to third parties, other than is necessary in the framework of an agreement with Promeco and only after written approval from Promeco. The obligation will apply both during the contractual relationship between Promeco and the customer and during a five-year-period following the termination thereof. Confidential information includes all information and documents exchanged between Promeco and the customer, irrespective of whether this communication is done orally or in writing, and irrespective of the nature of the information and the documents, and irrespective of whether this information and documents have been qualified as confidential. The customer warrants that he will obtain the agreement of these provisions from its subsidiaries, affiliates, agents, advisors, representatives and employees. The customer will have to return this information at first request. The customer shall impose the same obligation on employees and/or third parties called to perform its agreements in conformity with the requirements set out in Article 10.

The customer shall not be allowed to give any form of publicity relating to the performance of the contract without the prior written permission from Promeco, nor to use the name Promeco in advertisements and other commercial messages, nor to maintain direct or indirect contact with Promeco’s clients, nor to refer to Promeco as a reference. Without Promeco’s explicit written permission, the customer will not use the items and/or services created through the mutual efforts of the Parties for the benefit of any third parties.

In case of infringement by the customer of one or more obligations resulting from this article, the customer will be liable for an immediate penalty of 25,000 EUR in favour of Promeco, without notice of default or judicial intervention, without prejudice to the right of Promeco to recover the actual damage suffered to the customer.

 

12. Nullity of one or more of the provisions

Whenever possible, these general conditions shall be interpreted in such a manner as to be valid and enforceable under the applicable law. The nullity or unenforceability for whatever reason of a stipulation in these general conditions of sale does not impair or affect the validity or enforceability of the other stipulations in these general conditions of sale. Parties shall replace the nullified stipulation by a valid one that has the same effect within the confines of the law as the stipulation that was declared null.

 

13. General provisions

The non-application by Promeco of one or more provisions of these general conditions of sale, shall never be considered as a waiver of said conditions. The Dutch text of these conditions shall prevail at all time over all (certified) translations thereof.

 

14. Applicable law and territorial jurisdiction

Belgian law alone shall apply at all times to any price quotes sent out by Promeco and to all legal relationships between Promeco and the customer in accordance with issues, questions and disputes resulting from or relating to these general conditions of purchase or any agreement between Promeco and the customer and with the exception of the rules of international private law (including CISG and other equivalent treaties). All disputes, claims or differences of whatever nature, which cannot be settled amicably will come under the sole jurisdiction of the courts and tribunals in the judicial district of Kortrijk, on the understanding that Promeco reserves the right to place the dispute before any other court with jurisdiction under Belgian law.