GENERAL TERMS AND CONDITIONS
1.1 For the purposes of these General Terms and Conditions:
a. "NOVOSANIS" shall mean Novosanis NV, with its registered office at Bijkhoevelaan 32c, 2110 Wijnegem, Belgium, registered with the Company register of legal entities under number 0521.961.552;
b. "Contracting Party": any legal entity or natural person, as well as their agents or representatives, which has entered into or wishes to enter into a contract with NOVOSANIS;
c. "Goods and Services": goods and services supplied by NOVOSANIS to the Contracting Party, including without limitation design and consultancy services with respect to technical solutions, calculations and products, in the broadest sense.
2.1 Each offer and each agreement, whether preparatory or performance-related, including inter alia offers, order confirmations, sales and deliveries, between NOVOSANIS and the Contracting Party, shall be governed exclusively by the present terms and conditions (hereinafter the "General Terms and Conditions").
2.2 Any derogation from the General Terms and Conditions must be agreed by NOVOSANIS expressly in writing and shall apply only to the relevant derogating written agreement.
2.3 Neither the Contracting Party's nor any third party's terms and conditions shall be binding on or applicable to NOVOSANIS and are expressly rejected. Terms and conditions that differ from the General Terms and Conditions shall only apply if they have been expressly accepted in writing by NOVOSANIS and shall only apply to the relevant derogating written agreement.
3.1 All offers and price lists sent by or on behalf of NOVOSANIS shall be free of obligations and shall not be binding on NOVOSANIS, unless NOVOSANIS states otherwise in writing or by e-mail.
3.2 The content of catalogues, brochures, printed materials, price lists and websites, while carefully compiled by NOVOSANIS, consists solely of general information which is not binding on NOVOSANIS. Such documents would only be binding on NOVOSANIS if NOVOSANIS would explicitly confirm this in written.
3.3 All data and/or information provided by NOVOSANIS with an offer or otherwise shall remain the property or intellectual property of NOVOSANIS and must be returned at NOVOSANIS's first request.
3.4 NOVOSANIS reserves the right to make technical modifications to the Goods to the extent such changes do not alter the function and use of the Goods. As a result, technical specifications, dimensions and weight may differ upon delivery.
4.1 An agreement shall be concluded when the following conditions are met: the offer or contract form is filled in and signed by the Contracting Party and received and accepted by NOVOSANIS or when NOVOSANIS confirms the order in writing (including e-mail) or when NOVOSANIS starts performing the agreement.
4.2 An agreement for which no offer or order confirmation is sent, due to its nature and scope, can be binding from the time NOVOSANIS starts performing the agreement. In this case, the invoice shall be considered confirmation of the order, which shall be considered a proper and faithful representation of the agreement.
4.3 The parties are free to prove the existence of their agreement by other means.
4.4 Any additional agreements or changes to existing agreements, as well as agreements or commitments made (orally or otherwise) by NOVOSANIS's personnel or on its behalf by salespersons, agents, representatives or other intermediaries, shall only be binding on NOVOSANIS if they are confirmed by NOVOSANIS in writing.
4.5 Upon or after entering into the agreement NOVOSANIS may, at its sole discretion, require the Contracting Party to provide security to ensure the fulfilment of payment and other obligations.
5.1 Unless stated otherwise, all prices listed by NOVOSANIS are:
- based on delivery EX WORKS;
- exclusive of Belgian VAT, import duties, other taxes, levies and charges;
- stated in Euros;
- subject to change; only the prices mentioned in the latest price list and expressly accepted by NOVOSANIS pursuant to Article 4.1 of the General Terms and Conditions are valid and applicable.
5.2 NOVOSANIS has the right to unilaterally change its prices, even after confirmation of an order, in the event inter alia of an increase, for whatsoever reason, in one or more of the cost factors, including without limitation wages, materials and exchange rate fluctuations. In this case, NOVOSANIS shall inform the Contracting Party of the increase, after which the Contracting Party shall have the right to terminate the agreement, within a period of two weeks from receipt of this information.
5.3 With regard to Services, NOVOSANIS's expenses incurred during performance of the agreement shall be invoiced on a monthly basis, unless agreed otherwise.
5.4 NOVOSANIS is entitled to charge a fee for travel expenses in the amount of EUR 0.33 (excl. VAT) per kilometre.
6.1 Delivery shall be deemed made EX WORKS. The Contracting Party shall assume all risks in relation to the Goods as from the time they are made available at NOVOSANIS's premises.
6.2 The Contracting Party shall inspect the delivered Goods or packaging for potential defects immediately upon delivery or at any other mutually agreed time. Upon delivery, the Contracting Party shall list on the delivery slip, invoice and/or transport document any (visible) defects. Defects which are not listed at the time of delivery shall be deemed to have arisen after delivery. In this case, NOVOSANIS shall not be required to respond to complaints in this regard.
6.3 Novosanis shall at all times have 1.000 of Goods in stock. For orders of 1.000 Goods, the lead time is 2 weeks. For orders of more than 1.000 Units, the lead time is minimum 4 weeks, depending on the quantity. NOVOSANIS will use its best efforts to deliver the Goods on time. Unless expressly agreed otherwise, the delivery times indicated are estimates only. NOVOSANIS shall not be required to pay any compensation if a delivery is not made on time. If NOVOSANIS repeatedly fails to meet the indicated delivery times, however, the Contracting Party may declare NOVOSANIS to be in default and set a final (reasonable) time for delivery, bearing in mind all relevant circumstances, and applying a penalty of 1% of the amount of the order for each week of delay, limited however to a maximum of 3% of the amount of the order.
6.4 Any changes in and/or cancellation of all or part of an assignment or order, by or at the request of the Contracting Party, may only be implemented with the prior written consent of NOVOSANIS, provided the Contracting Party has paid in full for the work that has already been performed, including all materials used to this end. In the event of a change and/or partial cancellation at the Contracting Party's request, NOVOSANIS shall be entitled to pass on the costs and additional costs involved to the Contracting Party and to set a new delivery time.
6.5 If the Other Party does not take delivery of the goods at the scheduled time or within the scheduled period, NOVOSANIS shall be entitled to invoice the Contracting Party for the goods in question. NOVOSANIS shall also be entitled to store the goods or have them stored at the Contracting Party's expense and risk. Unless provided otherwise, should the Contracting Party fail to take delivery of the goods within a period of one month after storage, NOVOSANIS shall be entitled to either perform the agreement or terminate the agreement without judicial intervention, at the Contracting Party's expense, either way without prejudice to NOVOSANIS's right to damages.
6.6 Return shipments shall only be accepted if NOVOSANIS has expressly consented in writing.
6.7 The Contracting Party shall bear the expense and/or risk of any loss or damage, including breakage, at the time of or as a result of storage (including temporary storage) and/or safekeeping and/or processing of goods, unless such damage can be attributed to an intentional act or omission on the part of NOVOSANIS.
7.1 The terms and purpose of NOVOSANIS's assignment shall be described in the confirmation form. Unless agreed otherwise, NOVOSANIS is entitled to perform all activities which it deems necessary to realise an assignment or achieve a similar result.
7.2 NOVOSANIS is entitled to perform all activities at its own discretion, bearing in mind the Contracting Party's instructions and assignment.
7.3 NOVOSANIS is entitled to call on third parties to assist it without the Contracting Party's consent.
8.1 NOVOSANIS shall send an invoice to the Contracting Party for the fees and expenses resulting from the agreement.
8.2 Unless agreed otherwise, payment shall be made by deposit or transfer to the bank account indicated by NOVOSANIS. The payment term is fifteen (15) days from the invoice date, unless agreed otherwise in writing. The date appearing on NOVOSANIS's bank statements is decisive and shall be considered the payment date.
8.3 The Contracting Party shall pay 50% of the price upfront before every supply, upon confirmation of the order by Novosanis. NOVOSANIS is entitled to perform the assignment only once the advance has been received.
8.4 In the absence of payment within the period mentioned in Article 8.2, the following shall be due by operation of law as of the date of the invoice, without prior proof of default being required: (a) interest for late payment at the reference rate applicable to late payments, as stipulated by the Act of 2 August 2002 regarding the discouraging of late payment in commercial transactions and (b) out-of-court collection costs in the amount of 5% of the amount owed, which shall be deemed at least EUR 500.
8.5 Each payment by the Contracting Party shall be used first to pay down the interest owed by this party and, secondly, to cover the collection and/or administration costs incurred by NOVOSANIS, as mentioned in Article 8.4. The remainder, if any, shall be deducted from the outstanding claims, with priority given to the oldest.
8.6 If the Contracting Party wishes to object to an invoice received, it must do so in writing within two weeks from the invoice date. In the absence of a written objection within this time period, the invoice shall be deemed accepted by the Contracting Party.
9.1 All Goods delivered by NOVOSANIS are and shall remain the property of NOVOSANIS until the Contracting Party has paid in full all amounts it owes to NOVOSANIS under all agreements between the parties. The Contracting Party shall bear all risk in relation to Goods in its possession.
10.1 The Contracting Party is not entitled to assign any of its rights or obligations under an agreement or the General Terms and Conditions to any third party without the prior written consent of NOVOSANIS.
11.1 Unless and to the extent provisions of mandatory law relating to (product) liability or public policy so require, and except for fraud by NOVOSANIS, NOVOSANIS shall not be obliged to make good any loss or damage, of whatsoever nature, to any movable or immovable property or person, including any trading loss or consequential damage, on the part of the Contracting Party or a third party, which is directly or indirectly caused by or connected with any Good or Service delivered by NOVOSANIS or on its behalf or which is directly or indirectly caused by any use, application or processing, the storage or safekeeping, assembly or installation of such Good or Service.
11.2 Except for and without prejudice to Article 11.1 of the General Terms and Conditions, NOVOSANIS's contractual and extra-contractual liability under any circumstances, including gross negligence, shall be limited to the maximum amount invoiced by NOVOSANIS for the Goods and Services supplied, or any part thereof.
11.3 NOVOSANIS shall in any case not be liable for any loss or damage caused directly or indirectly by improper use of the Goods or Services delivered or by their use for a purpose other than that for which they are suitable or intended, in accordance with objective criteria or the instructions. Nor shall NOVOSANIS be liable for any loss or damage due to a defect in the Goods if:
a. it is plausible, in view of the circumstances, that the defect that caused the loss or damage did not exist at the time the Goods were delivered or if the defect only appeared afterwards;
b. the defect is due to the fact that the Goods must comply with mandatory government regulations;
c. it was impossible to discover the existence of the defect based on the state of scientific and technical knowledge at the time the Goods were delivered;
d. with respect to the manufacturer of a part, the defect can be attributed to the design of the product to which the part belongs or to the instructions provided by the manufacturer of the product;
e. the loss or damage is due to negligence on the part of the Contracting Party, the Contracting Party's staff or other persons it has engaged or any other person acting for the Contracting Party;
f. the loss or damage is due to infringement of any intellectual property right or any other exclusive right or the infringement or violation of a licence of any such right, which directly or indirectly results from the use and/or application and/or publication or reproduction of information provided by or on behalf of the Contracting Party, such as descriptions, drawings, models, designs and the like.
11.4 The Contracting Party shall indemnify NOVOSANIS for any claims filed by third parties for damage caused in whatsoever way by the wrongful or negligent use of the Goods and Services delivered to the Contracting Party by NOVOSANIS.
11.5 NOVOSANIS shall in no case be liable as a sponsor or co-sponsor (within the meaning of the Act of 7 May 2004 with respect to experiments on the human person) when it delivers to third parties Products for use in the framework of experiments or studies on the human person, except when such liability is explicitly agreed to by NOVOSANIS in writing.
11.6 NOVOSANIS is not responsible and cannot be held liable for the content of models, designs, drawings, examples and/or materials supplied by the Contracting Party.
11.7 The Contracting Party shall be liable for any damage caused to NOVOSANIS due to the Contracting Party's failure to perform obligations resulting from the agreement or these General Terms and Conditions.
11.8 The Contracting Party shall inform NOVOSANIS immediately in writing of any changes to its contact information. Failure to do so shall result in the Contracting Party being held liable for any possible damage sustained by NOVOSANIS due to this oversight.
11.9 This article of the General Terms and Conditions shall survive termination or invalidation of any agreement concluded with NOVOSANIS, regardless of the reason.
12.1 If NOVOSANIS is prevented from performing the agreement in whole or in part due to a permanent or temporary event of force majeure caused by external or internal circumstances beyond its control, it shall be entitled to extend the delivery period accordingly and, without judicial intervention being required and without being liable for compensation or damages, to terminate the agreement in whole or in part by giving written notice to this effect. In this case, NOVOSANIS remains entitled to payment by the Contracting Party for Goods or Services delivered prior to the event of force majeure.
12.2 Force majeure includes all circumstances which render it impossible for NOVOSANIS to temporarily or permanently fulfil its obligations, including without limitation government measures, strikes, failure by suppliers to deliver goods necessary to supply the Goods and Services, as well as any circumstances under which NOVOSANIS can no longer be expected to perform or further perform its obligations to the Contracting Party. NOVOSANIS may also rely on force majeure if the event of force majeure arises after its performance should have been carried out.
13.1 Without prejudice to the application of Article 6.2 of the General Terms and Conditions (visible defects), the Contracting Party must inspect the goods immediately upon delivery, as thoroughly as possible. Any complaints regarding shortcomings or defects must be reported to NOVOSANIS in writing within eight (8) working days from delivery. Shortcomings or defects that cannot reasonably be discovered within the aforementioned period must be reported to NOVOSANIS in writing immediately upon discovery and in any case within six (6) months from delivery.
13.2 After expiry of the period(s) indicated in Article 13.1 above, the Contracting Party shall be deemed to have approved the Goods and Services and NOVOSANIS shall no longer accept any complaints.
13.3 If the complaint is deemed founded, NOVOSANIS shall be obliged to take back the defective Goods and replace them or make up the shortfall.
13.4 The submission of a complaint does not release the Contracting Party from its obligations (including payment obligations) to NOVOSANIS. NOVOSANIS shall at all times be entitled to set off possible claims by the Contracting Party against Contracting Party.
14.1 All intellectual property rights in the Goods and Services delivered by NOVOSANIS shall remain the sole and exclusive property of NOVOSANIS, unless agreed otherwise in writing.
14.2 The Contracting Party shall refrain from infringing NOVOSANIS's intellectual property rights and shall indemnify NOVOSANIS for any third-party claims resulting from an infringement of intellectual property rights by the Contracting Party.
14.3 The Contracting Party shall not alter the Goods delivered by NOVOSANIS, including (trade) marks and markings on the packaging and/or the Goods. NOVOSANIS shall not be liable for infringements of intellectual property rights by third parties which are due to modifications without its consent of the Goods.
14.4 The Contracting Party shall not at any time claim any right, title or interest in or to NOVOSANIS's intellectual property, by means of registration or otherwise.
14.5 The Contracting Party guarantees to NOVOSANIS that it is the owner of all models, drawings, designs, examples and/or materials supplied to NOVOSANIS and that it is entitled to place these at NOVOSANIS's disposal for the agreed purposes. The Contracting Party shall indemnify NOVOSANIS for any claims resulting from any infringement of third-party rights.
14.6 The Contracting Party shall take all reasonable steps to detect infringements of NOVOSANIS's intellectual property rights and promptly notify NOVOSANIS thereof.
14.7 The Contracting Party shall cause its staff and other contracting parties to respect the provisions of this article.
15.1 The Contacting Party shall treat all information relating to NOVOSANIS, including without limitation all models, drawings and designs of which it acquires knowledge during negotiations and/or the conclusion and performance of any agreement with NOVOSANIS, as confidential.
15.2 The Contracting Party shall cause its staff to respect the provisions of this article.
15.3 The obligations arising from this article shall survive termination or invalidation, for any reason, of any agreement with NOVOSANIS.
16.1 NOVOSANIS reserves the right to unilaterally amend or complete the General Terms and Conditions.
16.2 Amendments shall also apply to existing agreements. The amended General Terms and Conditions shall enter into effect thirty (30) days after publication of the amendments on www.novosanis.com.
16.3 If the Contracting Party does not consent to the amendment of the General Terms and Conditions, it shall be entitled to terminate, by a written notification, the agreement until the date the amended General Terms and Conditions are scheduled to enter into effect. The termination of the agreement shall then enter into force on that date or on the date of receipt of the notification of termination if such date is later than the date of entry into effect of the amended General Terms and Conditions.
17.1 NOVOSANIS has the right to terminate any agreement governed by the General Terms and Conditions, effective immediately, at any time, without judicial intervention and/or compensation, in the event the Contracting Party commits a breach, of any kind, of any provision of the General Terms and Conditions, or any provision of an agreement governed by the General Terms and Conditions, and such breach is not remedied within a period of fifteen (15) days after notifying the Contracting Party of its intention to terminate the agreement.
17.2 NOVOSANIS is entitled to terminate any agreement with the Contracting Party and to cancel any assignment, effective immediately, without judicial intervention and/or compensation, and to request payment in full of any amounts owed by the Contracting Party to NOVOSANIS, in the event that:
a. the Contracting Party files for bankruptcy;
b. the Contracting Party becomes insolvent or is declared bankrupt;
c. the Contracting Party files a petition for temporary relief or composition with creditors ("gerechtelijke reorganisatie/réorganisation judiciaire");
d. the Contracting Party is granted temporary relief or a composition with creditors;
e. the Contracting Party (for a legal entity) is liquidated or terminated;
f. there is a material change in the person or entity capable of influencing the management and policy of the Contracting Party, through voting rights, contracts or otherwise;
g. an agreement with NOVOSANIS is assigned without NOVOSANIS's prior written consent.
17.3 Novosanis has the right to terminate any agreement governed by these General Terms and Conditions at any time upon 1 month written notice.
17.4 In the event of discontinuance of manufacturing of any Good or Service, Novosanis shall issue a last call for orders with the Contracting Party. On the basis of that last call for orders, Novosanis shall supply the Good or Service to the Contracting Party for 1 month.
17.5 The provisions of Article 17.1 and Article 17.2 are without prejudice to NOVOSANIS's right to claim damages from the Contracting Party.
18.1 Each offer and agreement and the execution thereof are governed exclusively by Belgian law, expressly excluding the application of the United Nations Convention on Contracts for the International Sale of Goods (Vienna Convention).
18.2 In the event a court finds one or more provisions of these General Terms and Conditions to be unlawful, the other provisions shall remain in full force and effect. In that case NOVOSANIS and the Contracting Party undertake to negotiate a new provision to replace the invalidated provision, which reflects insofar as possible the purpose and scope of that provision.
18.3 In the event of a dispute arising from or in relation to the validity, interpretation or performance of the General Terms and Conditions or an agreement governed by the General Terms and Conditions, which cannot be settled amicably, the parties undertake to submit their dispute to mediation, in accordance with the rules of bMediation, Louizalaan 500, 1050 Brussels, Belgium. If mediation fails, the Antwerp courts shall have exclusive jurisdiction.
19.1 The fact that a clause (or part thereof) of these General Terms and Conditions would be declared null and void shall not affect the validity of the other clauses (or part thereof).The fact that a clause (or part thereof) of these General Terms and Conditions would be declared null and void shall not affect the validity of the other clauses (or part thereof).