General sales conditions for products and services
1.1 The following definitions and rules of interpretation apply in these conditions. Buyer: the person, firm or company purchasing the Goods from the Company. Company: I-Label, Leemstraat 23 9820 Merelbeke Contract: any contract and/or purchase order between the Company and the Buyer for the sale and purchase of the Goods, incorporating or subjected to these conditions. Delivery Point: the place where delivery of the Goods is to take place under condition 4. Goods: any goods agreed in the Contract to be supplied to the Buyer by the Company, including any part or parts of them.
1.2 A reference to a particular law is a reference to it as it is in force for the time being taking account of any amendment, extension, application or re-enactment and includes any subordinate legislation for the time being in force made under it.
1.3 Words in the singular include the plural and in the plural include the singular.
1.4 A reference to one gender includes a reference to the other gender.
1.5 Condition headings do not affect the interpretation of these conditions.
2. APPLICATION OF TERMS
2.1 Subject to any variation under condition 2.3 the Contract shall be on these conditions to the exclusion of all other terms and conditions, including any terms or conditions which the Buyer purports to apply under any purchase order, confirmation of order, specification or other document. By placing orders for Goods, the Buyer is deemed to have accepted these conditions. Any counter-confirmations referring to the own conditions of the Buyer are hereby contradicted.
2.2 No terms or conditions endorsed on, delivered with or contained in the purchase order of the Buyer, confirmation of order, specification or other document shall form part of the Contract simply as a result of such document being referred to in the Contract.
2.3 These conditions apply to all sales of the Company and any variation to these conditions and any representations about the Goods shall have no effect, unless expressly agreed in writing and signed by an authorised representative of the Company. Company reserves the right to amend these conditions at any time and such amended version shall forthwith apply to any past, pending or future sales of Goods.
2.4 Each order or acceptance of a quotation for Goods by the Buyer from the Company shall be deemed to be an offer by the Buyer to buy Goods subject to these conditions.
2.5 No order placed by the Buyer shall be deemed to be accepted by the Company until a written acknowledgement of the order is issued by the Company or, if earlier, the Company delivers the Goods to the Buyer.
2.6 The Buyer shall ensure that the terms of its order and any applicable specification are complete and accurate.
2.7 Any quotation is given on the basis that no Contract shall come into existence until the Company despatches an acknowledgement of order to the Buyer. Any quotation is valid for a period of thirty (30) days only from its date, provided that the Company has not previously withdrawn it.
3.1 The quantity and description of the Goods shall be as set out in the quotation or acknowledgement of order of the Company.
3.2 All samples, drawings, descriptive matter, specifications and advertising issued by the Company and any descriptions or illustrations contained in the catalogues or brochures of the Company are not part of the Contract, but are issued or published for the sole purpose of giving an idea of the Goods described in them.
4.1 Unless otherwise agreed in writing by the Company, delivery of the Goods shall take place “Ex Works” (ICC 2010 INCOTERMS), Leemstraat 23 9820 Merelbeke, Belgium.
4.2 The Buyer shall take delivery of the Goods within three (3) days of the Company giving it notice that the Goods are ready for delivery.
4.3 Any dates specified by the Company for delivery of the Goods are intended to be an estimate and time for delivery shall not be made of the essence by notice. If no dates are so specified, delivery shall be within a reasonable time.
4.4 Subject to the other provisions of these conditions the Company shall not be liable for any direct, indirect or consequential loss (all three of which terms include, without limitation, pure economic loss, loss of profits, loss of business, depletion of goodwill and similar loss), costs, damages, charges or expenses caused directly or indirectly by any delay in the delivery of the Goods (even if caused by the failure of the Company), nor shall any delay entitle the Buyer to terminate or rescind the Contract unless such delay exceeds sixty (60) days.
4.5 If for any reason the Buyer fails to accept delivery of any of the Goods when they are ready for delivery, or the Company is unable to deliver the Goods on time because the Buyer has not provided appropriate instructions, documents, licences or authorisations: (a) Risk in the Goods shall pass to the Buyer, including for loss or damage caused by the negligence of the Company; (b) Goods shall be deemed to have been delivered; and (c) The Company may store the Goods until delivery, whereupon the Buyer shall be liable for all related costs and expenses (including, without limitation, storage and insurance).
4.6 The Buyer shall provide at the Delivery Point and at its expense adequate and appropriate equipment and manual labour for unloading the Goods.
4.7 If the Company delivers to the Buyer a quantity of Goods of up to ten percent (10%) more or less than the quantity accepted by the Company, the Buyer shall not be entitled to object to or reject the Goods or any of them by reason of the surplus or shortfall and shall pay for such goods at the pro rata Contract rate.
4.8 The Company may deliver the Goods by separate instalments. Each separate instalment shall be invoiced and paid for in accordance with the provisions of the Contract.
4.9 Each instalment shall be a separate Contract and no cancellation or termination of any one Contract relating to an instalment shall entitle the Buyer to repudiate or cancel any other Contract or instalment.
5.1 The quantity of any consignment of Goods as recorded by the Company upon despatch from the place of business of the Company shall be conclusive evidence of the quantity received by the Buyer on delivery, unless the Buyer can provide conclusive evidence proving the contrary.
5.2 The Company shall not be liable for any partial or non-delivery of Goods even if caused by the failure or negligence of the Company, unless the Buyer gives written notice to the Company of the partial or non-delivery within five (5) days of the date when the Goods would in the ordinary course of events have been received.
5.3 The liability of the Company for partial or non-delivery of the Goods shall be limited to: (a) Completing the order by delivering the missing Goods; (b) Delivering the Goods ordered under the Contract; or (c) Cancelling the order by issuing a credit note against any raised invoice, if any, and by taking back any partially delivered Goods, if any. The above remedial actions shall take place within a reasonable time and at the sole option of the Company.
6.1 The Goods are at the risk of the Buyer from the time of delivery as defined by the applicable ICC 2010 INCOTERM.
6.2 Ownership of the Goods shall not pass to the Buyer until the Company has received in full, in cash or cleared funds, all sums due to it in respect of: (a) The Goods; and (b) All other sums due to the Company from the Buyer on any account.
6.3 Until ownership of the Goods has passed to the Buyer, the Buyer shall: (a) Hold the Goods on a fiduciary basis as a bailee of the Company; (b) Store the Goods (at no cost to the Company) separately from all other goods of the Buyer or any third party in such a way that they remain readily identifiable as the property of the Company; (c) Not destroy, deface or obscure any identifying mark or packaging on or relating to the Goods; and (d) Maintain the Goods in satisfactory condition and keep them insured on behalf of the Company for their full price against all risks to the reasonable satisfaction of the Company. On request the Buyer shall produce the policy of insurance to the Company.
6.4 The Buyer may resell the Goods before ownership has passed to it solely on the following conditions: (a) Any sale shall be effected in the ordinary course of the business of the Buyer at full market value; and (b) Any such sale shall be a sale of the property of the Company on the own behalf of the Buyer and the Buyer shall deal as principal when making such a sale.
6.5 The right of the Buyer to possession of the Goods shall terminate immediately if:
3 (a) The Buyer has a bankruptcy order made against him or makes an arrangement or composition with his creditors, or otherwise takes the benefit of any statutory provision for the time being in force for the relief of insolvent debtors, or (being a body corporate) convenes a meeting of creditors (whether formal or informal), or enters into liquidation (whether voluntary or compulsory) except a solvent voluntary liquidation for the purpose only of reconstruction or amalgamation, or has a receiver and/or manager, administrator or administrative receiver appointed of its undertaking or any part thereof, or documents are filed with the court for the appointment of an administrator of the Buyer or notice of intention to appoint an administrator is given by the Buyer or its directors, or a resolution is passed or a petition presented to any court for the winding-up of the Buyer or for the granting of an administration order in respect of the Buyer, or any proceedings are commenced relating to the insolvency or possible insolvency of the Buyer; or (b) The Buyer suffers or allows any execution, whether legal or equitable, to be levied on his/its property or obtained against him/it, or fails to observe or perform any of his/its obligations under the Contract or any other contract between the Company and the Buyer, or is unable to pay its debts, or the Buyer ceases to trade; or (c) The Buyer encumbers or in any way charges any of the Goods.
6.6 The Company shall be entitled to recover payment for the Goods notwithstanding that ownership of any of the Goods has not passed from the Company.
6.7 The Buyer grants the Company, its agents and employees an irrevocable licence at any time to enter any premises where the Goods are or may be stored in order to inspect them, or, where the right of the Buyer to possession has terminated, to recover them.
6.8 Where the Company is unable to determine whether any Goods are the goods in respect of which the right of the Buyer to possession has terminated, the Buyer shall be deemed to have sold all goods of the kind sold by the Company to the Buyer in the order in which they were invoiced to the Buyer.
6.9 On termination of the Contract, howsoever caused, the rights of the Company (but not of the Buyer) contained in this condition 6 shall remain in effect.
7.1 Unless otherwise agreed by the Company in writing, the price for the Goods shall be the price set out in the price list of the Company published on the date of delivery or deemed delivery.
7.2 The price for the Goods shall be exclusive of any value added tax and all costs or charges in relation to packaging, loading, unloading, carriage and insurance, all of which amounts the Buyer shall pay in addition when it is due to pay for the Goods.
8.1 Subject to condition 8.4, payment of the price for the Goods is due in Euros (EUR) within thirty (30) calendar days from the date of invoice, unless expressly agreed otherwise.
8.2 Time for payment shall be of the essence.
8.3 No payment shall be deemed to have been received until the Company has received cleared funds.
8.4 All payments payable to the Company under the Contract shall become due immediately on its termination despite any other provision.
8.5 The Buyer shall make all payments due under the Contract in full without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise unless the Buyer has a valid court order requiring an amount equal to such deduction to be paid by the Company to the Buyer.
8.6 If the Buyer fails to pay the Company any sum due pursuant to the Contract within the term set forth in condition
8.1, the Buyer shall be liable to pay interest to the Company on such sum, automatically and without the necessity of a prior notice in accordance with the Belgian Law of August 2, 2002 from the due date for payment, accruing on a daily basis until payment is made.
9. WARRANTIES/ REMEDIES
9.1 Where the Company is not the manufacturer of the Goods, the Company shall endeavour to transfer to the Buyer the benefit of any warranty or guarantee given to the Company.
9.2 The Company warrants that (subject to the other provisions of these conditions) upon delivery, and for a period of twelve (12) months from the date of delivery, the Goods shall: (a) Be in conformance with any agreed specifications; (b) Be free from defects in material and workmanship.
9.3 The Company shall not be liable for a breach of any of the warranties in condition 9.2, unless: (a) The Buyer gives written notice of the defect to the Company, and, if the defect is as a result of damage in transit to the carrier, within thirty (30) days of the time when the Buyer discovers or ought to have discovered the defect; and
4 (b) The Company is given a reasonable opportunity after receiving the notice of examining such Goods and the Buyer (if asked to do so by the Company) returns such Goods to the Company's place of business at the Buyer’s cost for the examination to take place there.
9.4 The Company shall not be liable for a breach of any of the warranties in condition 9.2 if: (a) The Buyer makes any further use of such Goods after giving such notice; or (b) The defect arises because the Buyer failed to follow the oral or written instructions of the Company as to the storage, installation, commissioning, use or maintenance of the Goods or (if there are none) good trade practice; or (c) The Buyer alters or repairs such Goods without the written consent of the Company.
9.5 Subject to condition 9.3 and condition 9.4, if any of the Goods do not conform with any of the warranties in condition 9.2, the Company shall at its option repair or replace such Goods (or the defective part) or refund the price of such Goods at the pro rata Contract rate provided that, if the Company so requests, the Buyer shall, at the Company's expense, return the Goods or the part of such Goods which is defective to the Company.
9.6 If the Company complies with condition 9.5 it shall have no further liability for a breach of any of the warranties in condition 9.2 in respect of such Goods.
9.7 Any Goods replaced shall belong to the Company and any repaired or replacement Goods shall be guaranteed on these terms for the unexpired portion of the twelve (12) month period.
9.8 The limited warranties under condition 9.2 are the sole and exclusive warranties of the Company with respect to the Goods and are in lieu of all other warranties, expressed or implied (which are hereby disclaimed and excluded by the Company), including without limitation any warranty of merchantability or fitness for a particular purpose or use and of all obligations or liabilities on the part of the Company.
10. INTELLECTUAL PROPERTY INFRINGEMENT/ INDEMNIFICATION
10.1 In the event of dispute with a third party regarding an intellectual property rights infringement, the Company may decide to suspend the sale of any affected Goods to the Buyer. Any costs incurred in relation to legal proceedings necessary to allow the Company and/or the Buyer to continue supplying, distributing or selling the Goods shall be equally shared. By suspending the sale of any affected Goods to the Buyer, the Company shall not be deemed to be in default. Moreover, in the event that no clarification is reached within three (3) months or in case the Company does not succeed in allowing the Buyer to continue distributing or selling any affected Goods in a given territory, either the Company or the Buyer may terminate any further supply, distribution or sale of Goods (allegedly) infringing third party intellectual property rights with prior notice to the other Party.
10.2 In the event that any Goods are infringing third party intellectual property rights, the maximum, aggregate liability of the Company for any loss and damages directly incurred by the Buyer shall be limited to the price paid by the Buyer for all infringing Goods purchased during the six (6) months period immediately preceding the date of the action or suit giving rise to the liability of the Company for third party intellectual property rights infringement.
10.3 The provisions of this condition 10 state the sole liability of the Company and the exclusive remedies of the Buyer in case of third party intellectual property rights infringement by the Goods.
11. LIMITATION/DISCLAIMER OF LIABILITY
11.1 Subject to conditions 4, 5, 6, 9 and 10, the following provisions set out the entire financial liability of the Company (including any liability for the acts or omissions of its employees, agents and sub-contractors) to the Buyer in respect of: (a) Any breach of these conditions; (b) Any use made or resale by the Buyer of any of the Goods, or of any product incorporating any of the Goods; and (c) Any representation, statement or tortious act or omission including negligence arising under or in connection with the Contract.
11.2 All warranties, conditions and other terms implied are, to the fullest extent permitted by law, excluded from the Contract.
11.3 Nothing in these conditions excludes or limits the liability of the Company for: (a) Death or personal injury caused by the negligence of the Company; or (b) Any matter that would be illegal for the Company to exclude or attempt to exclude its liability; or (c) Fraud or wilful misconduct;
11.4 Subject to condition 11.2 and condition 11.3: (a) The total liability of the Company in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise, arising in connection with the performance or contemplated performance of the Contract shall be limited to the Contract price; and
5 (b) The Company shall not be liable to the Buyer for any pure economic loss, loss of profit, loss of business, revenue or income, depletion of goodwill or otherwise, in each case whether direct, indirect, punitive, exemplary, specific or consequential, or any claims for whatever consequential compensation which arise out of or in connection with the Contract.
12.1 The Company may assign the Contract or any part of it to any person, firm or company.
12.2 The Buyer shall not be entitled to assign the Contract or any part of it without the prior written consent of the Company.
13. FORCE MAJEURE
The Company reserves the right to defer the date of delivery or to cancel the Contract or reduce the volume of the Goods ordered by the Buyer (without liability to the Buyer) if it is prevented from or delayed in the carrying on of its business due to circumstances beyond the reasonable control of the Company including, without limitation, acts of God, governmental actions, war or national emergency, acts of terrorism, protests, riot, civil commotion, fire, explosion, flood, epidemic, lock-outs, strikes or other labour disputes (whether or not relating to either party's workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, provided that, if the event in question continues for a continuous period in excess of sixty (60) days, the Buyer shall be entitled to give notice in writing to the Company to terminate the Contract.
14.1 Each right or remedy of the Company under the Contract is without prejudice to any other right or remedy of the Company whether under the Contract or not. 14.2 If any provision of the Contract is found by any court, tribunal or administrative body of competent jurisdiction to be wholly or partly illegal, invalid, void, unenforceable or unreasonable it shall to the extent of such illegality, invalidity, unenforceability or unreasonableness be deemed severable and the remaining provisions of the Contract and the remainder of such provision shall continue in full force and effect. 14.3 Failure or delay by the Company in enforcing or partially enforcing any provision of the Contract shall not be construed as a waiver of any of its rights under the Contract. 14.4 Any waiver by the Company of any breach of, or any default under, any provision of the Contract by the Buyer shall not be deemed a waiver of any subsequent breach or default and shall in no way affect the other terms of the Contract. 14.5 The parties to the Contract do not intend that any term of the Contract shall be enforceable by any person that is not a party to it. The formation, existence, construction, performance, validity and all aspects of the Contract shall be governed by Belgian law with the exception, however, of its conflict-oflaws rules and excluding as well the application of the Uniform Laws on the Formation of Contracts for the International Sale of Goods and on the International Sale of Goods (The Hague Conventions, 1964) and of the United Nations Convention on Contracts for the International Sale of Goods of 1980, and the parties submit to the exclusive jurisdiction of the courts of Antwerp, Belgium. 14.6 I-Label have the disposal over an “Authorized Economic Operator Certificate (“AEO”) and expects its suppliers, customers and partners to have the same or a similar certificate. If no such certificate is obtained, I-Label expects its suppliers, customers and partners to meet the supply security requirements published at www.ilabel.be to the maximum extent possible.
15.1 All communications between the parties about the Contract shall be in writing and delivered by hand or sent by pre-paid first class post, registered mail or sent by fax: (a) In case of communications to the Company, to its registered office or such changed address as shall be notified to the Buyer by the Company; or (b) In case of the communications to the Buyer to the registered office of the addressee (if it is a company) or (in any other case) to any address of the Buyer set out in any document which forms part of the Contract or such other address as shall be notified to the Company by the Buyer.
15.2 Communications shall be deemed to have been received: (a) If sent by mail, two (2) days (except Saturdays, Sundays and bank and public holidays) after posting (exclusive of the day of posting); or (b) If delivered by hand, on the day of delivery; or