GENERAL TERMS AND CONDITIONS
OF SALES AND DELIVERY KOMONO BVBA
1. General - scope
The General Terms and Conditions of Sales and Delivery (the “Terms and Conditions”) define the rights and obligations of KOMONO (the “vendor”) and of its customers (the “buyer”), and will apply to all offers, (purchase) agreements, deliveries and activities of KOMONO. With placement of the order the buyer acknowledges these general terms and conditions of sales and delivery.
These Terms and Conditions shall apply for the entire duration of the business relationship, i.e. for subsequent transactions as well. These general terms and conditions of sales and delivery need only be provided once.
Deliveries are made and services are carried out by KOMONO only on the basis of the following Terms and Conditions , if the parties do not agree otherwise in writing. Any and all terms and conditions – including those of the buyer -, if not explicitly accepted by KOMONO in writing are not binding for KOMONO, even if not expressly rejected, and shall be deemed inapplicable.
In the event any provision of the Terms and Conditions shall be held to be entirely or part wise invalid, the validity of the remaining provisions of the Terms and Conditions and the Terms and Conditions as such shall remain unaltered in force and the unenforceable provision shall be deemed modified to the limited extent required to permit its enforcement in a manner most closely approximating the original intention of the parties
2. Conclusion of the contract, offers
Offers are only binding when they are submitted in writing and when they are explicit specified as binding.
The conclusion of a contract becomes effective upon our written (including fax or e-mail) confirmation of an order.
No variation or purposed variation of a term of this or any contract shall bind KOMONO unless first agreed in writing.
For the purpose of these Terms and Conditions, “in writing” includes all communication between vendor and buyer by means of mail, e-mail or telefax.
The delivery certificate and/or the final invoice are valid as order confirmation.
3. Jurisdiction and applicable law
Any litigation relating to sale and/or delivery by the vendor, or other execution of an order, including warranty claims and/or plurality of defendants, is within the exclusive jurisdiction of the Antwerp courts, division Antwerp.
All matters concerning an offer and/or order will be determined in accordance with Belgian law, excluding provisions of Belgian private international law.
4. Dispatch and packaging
The products are delivered Free Carrier (FCA – INCOTERMS) from KOMONO’s sites unless otherwise agreed. Packing costs will be invoiced in addition. In cases of our aid for loading the buyer relieves the vendor from any responsibility of liability.
All risks of loss or damage to the products are assumed by the buyer from the moment they are placed at its disposal by the vendor at the agreed upon place of delivery and within the time stipulated in the order. From that moment on, the buyer will bear the risks of delay, loss or damage caused for example by any carrier, whether or not related transportation of the products has been arranged by the vendor.
Unless otherwise requested by the buyer, the vendor will select the means of transport considered most convenient and economically sound for dispatching the products on behalf of the buyer, without any kind of responsibility being incurred by the vendor as a result thereof.
5. Delivery period and acceptance
In the absence to agreement of the contrary, the period of delivery begins at the latest of the following moments:
(a) Date of confirmation of the order;
(b)Date of fulfillment of all technical, commercial and financial requirements on the part of the buyer;
(c)Date on which a down payment by the buyer is received by the vendor and/or a letter of credit to the benefit of the buyer has been opened.
Delivery dates given in the order confirmation and/or written correspondence are estimated delivery dates and non binding unless otherwise confirmed in writing.
The delivery date is met when the products are declared to be ready for delivery. If and in so far the goods fail to be dispatched at the agreed time for reasons not attributable to KOMONO, the delivery time shall be considered to have been met at the day on which the goods are notified to be ready for dispatch.
Partial deliveries are allowed.
Delivery dates may be extended by an appropriate period for any case beyond the vendor’s control making it impossible to meat performance deadlines. Examples are government intervention, riots, wars, natural disasters, shortages of energy or raw materials, strikes, lockouts, lack of means of transportation and so on. It is expressly agreed that no such force majeure event beyond either party’s control may relieve the buyer from its primary obligation to make timely payments to the vendor in accordance with the contract. KOMONO shall inform the buyer without delay and ensure that any inconvenience for the buyer is kept to a minimum.
6. Prices and conditions of payment
6.1 Prices are always stated as net amounts, excluding taxes and other charge, for unpacked products placed at the buyer’s disposal on KOMONO’s premises. All costs of packing, handling, shipping (surface, maritime or air), placing on board, insuring, etc. will be invoiced in addition. The buyer will pay for all rights, taxes and other official charges, as well as the duties and expenses for customs formalities for export and import of the products and, if necessary, transit abroad. The buyer will advance to the vendor whatever part of said costs, charges or expenses the vendor may be required to pay, so that the amount paid to and retained by the vendor is the price net of taxes.
The buyer is responsible for paying any increase in the cost of rights, taxes, levies and stamps occurring after placement of the order. Generally and notwithstanding anything to the contrary, the order price and/or the delivery period included in the order shall be adjusted as a result of an increase or decrease in costs and/or of extension or reduction of the time schedule, due to the execution of any new law or regulation or of any change in existing laws and regulations which occur after the bid due date or change in the interpretation of any applicable law or regulation of any governmental or other authority.
Prices are subject to adjustment by the vendor so as to take into account unforeseeable variations, e.g. in the costs of materials, energy and labor occurring between the date of the last offer and the contractual delivery date. The buyer hereby recognizes and acknowledges this fact, and that such price adjustments are valid without its prior agreement. KOMONO will insofar as possible inform the buyer within a reasonable time, of its intentions to make price adjustments.
Payments have to be made according to the agreed payment conditions. Unless otherwise agreed, KOMONO’s invoices are due to be paid on the due date mentioned on the invoice. Deductions or discounts require a special agreement. Payments are deemed to have been made at the time in which they are received in KOMONO’s business account.
Complaints which have not been integrally closed are no cause for a delay in payment.
Non-payment of a fraction of the price when due, or non-observation of any payment’s due date, shall trigger the vendor’s right to demand immediate payment of all sums then still due (bills of exchange included) and to retain installments held by the vendor as well as all items, in the vendor’s custody, until full payment of all sums due.
As compensation for the prejudice suffered as a result of said late payment(s) the buyer will pay the vendor without delay a sum equal to 15 % of the outstanding unpaid balance as well as interest of 12 % (annual rate) to the entire outstanding unpaid balance, without necessity of a reminder.
Notwithstanding resort to the sanction provided for in 6.7 above, non-payment of an invoice when due whether partial or in full and for whatever reason, entitles the vendor to cease delivering products and/or to stop all work, without notice or other formality. Such a decision, a matter of entitlement attributable to the buyer, entails the right retroactively to cancel existing contracts, without affecting the vendor’s right to compensation, or possible damages together with interest.
At any given time, the vendor is entitled to compensate all amounts he might be due to the buyer with all amounts payable by the buyer to the vendor.
7. Cancellation - termination
Delay in delivery, non observance of a procedure or any cause beyond the vendor’s reasonable control, such as one attributable to a third party, which makes it impossible for the vendor to fulfill its contractual obligations, shall be deemed to justify neither a request for any sort of compensation, nor the cancellation or termination of all or part of an order by the buyer.
The vendor shall have the right to terminate the contract if the buyer is in bankruptcy- , insolvency-, or liquidation proceedings, or in the event a significant change occurs in the buyer’s legal circumstances undermining its solvency. However termination of a contract shall not reduce the buyer’s debts to the vendor.
If the buyer, for its own reasons, unilaterally cancels or terminates all or part of an order, he shall immediately pay to the vendor financial compensation equal to 25 % of the canceled part of the order, without affecting the vendor’s right to prove and claim further damages.
8. Protected rights
Irrespective of the existence of legal protection rights and without limitation, all ideas, inventions, designs and samples, information, data, works protected by copyright, patents, design right, trademarks and trade secrets and all know how or other intellectual property, made by the vendor, and all techniques applied by the vendor to manufacture and design of the products, preliminary to or upon processing of an order shall always remain sole intellectual property of the vendor and may not be transmitted to, or otherwise shared with, third parties without the vendor’s prior written consent. Delivery of products shall not be deemed to convey to the buyer any license to the vendor’s intellectual property rights. The buyer commits itself to taking all measures needed to prevent infringement whether directly or by third parties, of the vendor’s intellectual property rights.
9. Notice of defects
A warranty claim shall be subject to the provision that the buyer has given commercially reasonable written notice of the defects that have occurred within 8 working days after delivery for apparent defects or 8 days after detecting a latent defect of the product, by including a specific description of the nature of the defect. At request of the vendor, the buyer is obliged to send samples of the defective products at its costs.
Any dispute about quality, delivery or any complaint shall not entitle the buyer to suspend payment.
Returning defective goods – samples excluded – is not admitted without prior written approval of the vendor. In case goods are nevertheless returned, all resulting costs caused to the vendor are to be reimbursed
10. Warranty and liability
The warranty period shall in all cases be restricted to 12 months after delivery.
Excluded from all guarantees are defects or damages resulting from storage or use of products by the buyer or its customers under conditions either anomalous or not in conformity with accepted norms.
For any claim raised and accepted, the vendor will either reduce the price, or replace the defective products or return the purchase price, whichever is preferable to the vendor. In any case, the vendor can never be held laible for anny indirect damage or consequential damages, lost profit or several losses, which arise by the buyer or a third party. In cases the vendor is claimed by third parties, the buyer will hold the vendor harmless against these claims.
The responsibility of the vendor, both with regard to the visible and latent defects, can never exceed the amount that is the equivalent to the invoiced amount for the relevant order.
11. Reservation of ownership
The vendor reserves the right of ownership of the products supplied, until full discharge of all financial obligations including interest and costs by the buyer. The buyer may only resell the products subject to reservation of ownership, upon prior written approval of the vendor.
12. Legal succession and assignment
Orders are binding for the legal successor of the buyer or the vendor. The rights and obligations as determined in the contract and the Terms and Conditions may not be assigned by either party without the prior written consent of the other party, which consent shall not be unreasonably withheld or delayed. The above will not apply in case of assignment to the legal successor(s) of either party. Such an assignment will be valid upon the notification of other party in writing.