Terms & Conditions
for DELIVERY OF MECHANICAL, ELECTRICAL, AND ELECTRONIC PRODUCTS
Brussels, March 2012
- These General Conditions shall apply if: the parties have agreed in writing or otherwise. Any change or deviation from these must be agreed in writing.
- In these General Conditions, the following terms shall have the following Stated meaning:
- “Agreement” means the Written Agreement of the Parties for the provision of The product with all annexes, including Written agreed changes and appendices to these documents;
- “Gross Negligence” means an act or omission which: implies either a failure to take account of serious consequences, whose entry into force a conscientious contracting party should normally have foreseen or deliberately disregarded the consequences of a such act or omission;
- “written”: communication by documents signed; by the parties, or by letter, fax, electronic mail and other means; as agreed by the parties;
- “Product” means the item(s) to be supplied in as provided by the Agreement, including software and documentation.
- All information and data in product information and price lists is binding only to the extent that the Agreement is in writing and expressly refers to them.
DRAWINGS AND TECHNICAL INFORMATION
- All drawings and technical documents relating to:
The product or manufacture thereof, as before or after the Agreement conclusion is left from one party to the other, it remains the property of the leaving party.
Drawings, technical documents or other technical information, received by a party may not, without the consent of the other party is used for purposes other than those for which it was intended; the abandonment. They may not, without the consent of the transferring party: copied, reproduced, transmitted to or otherwise brought about; to the knowledge of third parties.
- The supplier shall, at the latest upon delivery, be free of charge: leave the necessary information and drawings in order for the Buyer to be able to carry out assembly, commissioning, operation and maintenance of the Product. Such information and such drawings must be made available in the quantities agreed; or at least in one copy of each. The supplier is not obliged to: provide drawings or descriptions on which the basis of which the manufacture of the Product or spare parts.
- If a delivery sample has been agreed, the sample must – with unless otherwise agreed – performed at the location where the Product manufactured and during normal working hours. If the technical requirements for the test are not specified in the agreement, it shall be carried out in accordance with usual practice; in the relevant branch of industry in the country in which the Product Manufactured.
- The Supplier shall give such notice to the Buyer in writing on a delivery sample that the Buyer may be represented by Sample. If the Purchaser is not represented, the sample protocol shall is sent to the Buyer and must be accepted as correct.
- If the delivery sample shows that the Product is not contractual, the Supplier shall, without undue delay, remedy all defects to bring the Product into contractual condition. On at the request of the buyer, a new delivery test must then be carried out; unless the shortcomings were insignificant.
- The supplier shall bear all costs of delivery samples, carried out at the place where the Product is manufactured. However, the buyer bears all travel and subsistence costs of its representatives in connection with such samples.
DELIVERY. RISK TRANSITION
- If a delivery clause has been agreed, it shall be interpreted as conformity with those in force at the time of conclusion of the contract; INCOTERMS.® If no delivery clause has been separately agreed, delivery must be made Free Carrier (FCA) at the location specified by the Supplier. Have the Supplier, upon delivery Free Carrier, on the Buyer’s request to send the Product to its destination; surpass the risk at the latest when the Product is left to the first carrier. Unless otherwise agreed, partial deliveries are not permitted.
- If, instead of a specific delivery date, the parties has specified a time period within which delivery should take place; place, this period shall be deemed to commence as soon as the Agreement is concluded and all agreed preconditions incumbent on the Buyer, have been fulfilled, such as official formalities, payments which shall be payable at the time of conclusion of the Agreement and guarantees.
- If the Supplier can foresee that he will not be able to:deliver the Product in due time, he shall immediately provide the buyer with Written notification of the facts, together with the reason and, as far as possible; the time when delivery is expected to take place. If the Supplier fails to give such notice, the Purchaser shall be entitled to compensation for the additional costs incurred by him; inflicted and which he could have avoided if he had received such notice.
- If delay in delivery is due to any circumstance mentioned in clause 41 or resulting from the Buyer’s action, or omission, including interruption of performance of the contract pursuant to paragraphs 21 and 44, or due to any other circumstance, attributable to the Buyer, the Supplier has the right to: extend the delivery time to the extent that it after all circumstances are reasonable. This applies regardless of whether the cause of The delay occurs before or after the agreed delivery time.
- If the Product is not delivered on time, the Purchaser is entitled to liquidated damages from the day on which delivery should have taken place;. The contractual fine amounts to 0.5 per cent of the agreed purchase price for each week of delay started. The liquidated penalty cannot exceed 7.5 per cent of the agreed purchase price. If only part of the Product is delayed, the contractual penalty of that part of the agreed purchase price which covers: the part of the Product that cannot be taken due to the delay in use as provided by the parties. The contractual penalty is due in writing demand from the Buyer, but not earlier than when complete delivery has taken place or the Agreement is terminated in accordance with clause 15. The purchaser forfeits his right to liquidated damages if he: has not made a written request to that effect within six months of the time when delivery should have taken place.
- Is the delay such that the Buyer is entitled to maximum liquidated damages in accordance with clause 14 and the Product still does not delivered, the Buyer has the right to demand delivery in writing before a the last reasonable period, which may not be shorter than one week. If the Supplier fails to deliver within this deadline, and this is not due to any circumstance for which the Buyer is responsible; for, the Purchaser may, by Written notice to the Supplier, withdraw The Agreement in respect of that part of the Product which, by reason of The supplier’s failure to deliver cannot be used as provided by the parties. If the Purchaser terminates the Agreement, he is entitled to compensation for the loss suffered by him as a result of the Supplier’s delay, including loss for consequential and indirect losses. Total compensation – including the contractual penalty, which is payable in accordance with paragraph 14 – cannot exceed 15 per cent of the part of the agreed purchase price, covering the part of the Product for which the Agreement is terminated. The Purchaser is also entitled, by Written Notice to the Supplier, to terminate the Agreement if, due to the circumstances are clear that there will be a delay; which, pursuant to clause 14, would entitle the Purchaser to maximum liquidated damages. Upon such termination, the Purchaser has the right to: both maximum contractual penalties and compensation under third paragraph of this paragraph 15.
- Liquidated damages pursuant to paragraph 14 and repeal of The limited damages agreement within the meaning of clause 15 is the the sole remedies which the Purchaser may invoke as a result of: Supplier’s delay. Any other claim against the supplier due to such delay is excluded unless: The Supplier is guilty of Gross Negligence.
- If the Buyer foresees that he will not be able to accept delivery of the Product at the time of delivery, he shall immediately notify the Supplier in writing and at the same time indicate the reason and, as far as possible, the time at which he intends to: be able to receive the delivery. If the Buyer fails to receive the delivery on the time of delivery, he must nevertheless pay that part of the the purchase price due on delivery, which whether delivery had taken place. The supplier shall ensure that:
The Product is stored at the Buyer’s expense and risk. On the buyer’s at the request of the Supplier, the Supplier shall also insure the Product of the Purchaser’s bill.
- Unless the Purchaser’s failure to accept the delivery is due to such circumstances as mentioned in Clause 41, the Supplier may, by Written Notice, require that: The buyer receives the delivery within a last reasonable time. Fails the Buyer – for reasons not provided by the Supplier is responsible for – to receive the delivery within this deadline, the Supplier is entitled, by Written Notice, to withdraw The agreement in whole or in part. The supplier is then entitled to compensation for the damage caused to him by the Purchaser’s default; including losses for consequential and indirect losses. The compensation may not exceed the portion of the purchase price which covers the part of the The product covered by the rescission.
- Payments must be made within 30 days from the date of invoice. Unless otherwise agreed, the purchase price must be paid by one-third at the time of conclusion of the Agreement and by one-third by the supplier’s notice to the Purchaser that the Product or the The main part of this is ready for delivery. The balance must be paid, when the Product is delivered in its entirety.
- Irrespective of the manner in which payment is made, the payment shall not be deemed to have occurred before the Supplier’s account is irrevocably been credited with the amount due.
- If the Buyer does not pay in due time, the Supplier is entitled interest for late payment from the due date and entitlement to compensation for the recovery costs. The interest rate shall be that which: The parties have agreed. If the parties have not agreed on an interest rate, the European Central Bank’s refinancing rate; with a surcharge of 8 percentage points. Compensation for recovery costs must amount to 1% of the amount for which interest shall be paid as a result of late payment. In case of late payment and when the Buyer does not provide an agreed security in due time, the Supplier is entitled, after providing The Buyer Written notice thereof, to discontinue its performance of The agreement until payment is made or until the Buyer makes the agreed security. If the Purchaser has not paid after three months the amount due to which the Supplier is entitled by Written notice to the Buyer to terminate the Agreement and in addition to interest for late payment; and recovery costs under this paragraph to claim; compensation for the loss he has suffered. The compensation may not exceed the agreed purchase price.
RETENTION OF TITLE
- The Product remains the property of the Supplier until payment has been paid in full, to the extent that such retention of title is valid under the relevant legislation. The Purchaser shall, at the request of the Supplier, assist him with: to take necessary measures to protect the Supplier’s ownership of the Product. The retention of title does not affect the risk transition in According to paragraph 10.
LIABILITY FOR DEFECTS
- The supplier shall, in accordance with paragraphs 24- 39 remedy all deficiencies and errors (hereinafter referred to as deficiencies) which: is based on defects in design, material or manufacture.
- The supplier’s liability does not extend to defects caused by: material provided by the Purchaser or of structures; prescribed or specified by it.
- The supplier’s liability only covers defects that arise under the working conditions provided for in the Agreement and under proper use of the Product.
- The supplier’s liability does not extend to defects caused by: causes arising after the risk has passed to the Buyer, e.g. defects resulting from inadequate maintenance, improper; assembly or faulty repair by the Buyer; or changes made without the Supplier’s Written consent. Furthermore, the Supplier is not responsible for normal wear and tear and Deterioration.
- The supplier’s liability is limited to defects which show within a period of one year from delivery. If application of The product is more intensive than agreed, this period is shortened Proportionately.
- When a defect in any part of the Product has been remedied, The supplier responsible for defects in the repaired or replaced part according to the same conditions as apply to it; original Product for a period of one year. For the other products parts, the period referred to in point 27 shall be extended only by that period; and to the extent that the Product could not be used as result of the shortage.
- The Purchaser shall, without undue delay, by Written notify the Supplier of all defects, which shows say. Such notification shall not under any circumstances be carried out later than two weeks after the expiry of the procedure referred to in point 27; said period or the extended period referred to in paragraph 28, where applicable. The notification shall include a description of the deficiency. If the Buyer does not provide the Supplier with Writing notification of a deficiency within the time limits specified in the first paragraph of this paragraph, he forfeits the right to have the defect Remedied. If the defect is such that it may cause damage, the Purchaser shall: promptly notify the Supplier in writing. The buyer must bear the risk of damage to the Product arising from a Such notification does not take place. The buyer must initiate reasonable measures to limit damage and shall: respect follow the Supplier’s instructions.
- Upon receipt of notification under paragraph 29 The Supplier shall, in accordance with the rules set out in clauses 23- 39 remedy the defect at own expense without undue delay. The remedial work shall be carried out at times so that the Purchaser’s business is not disturbed to an undue extent. Repair must be carried out where the Product is located, unless the Supplier considers it more appropriate that: The product is sent to him or to a destination designated by him If the defect can be remedied by replacement, or repair of a defective part and, if dismantling and assembly; of the part does not require special expertise, the Supplier may require that the defective part be sent to him or to one of the him designated destination. In such a case, the Supplier’s obligation relating to the lack of conformity fulfilled where he has provided a properly repaired or replaced part for the Buyer.
- The purchaser shall, at his own expense, ensure free access to: The product and any intervention in equipment other than The product necessary to remedy the defect.
- Unless otherwise agreed, necessary transport of The Product or parts thereof to and from the Supplier in connection with with the rectification of defects for which the Supplier is responsible; be at the Supplier’s expense and risk. The buyer must follow Supplier’s instructions regarding such transportation.
- Unless otherwise agreed, the Purchaser shall bear all additional costs incurred by the Supplier in connection with rectification of the defect resulting from the presence of the Product; at a place other than that of destination, as at the time of the Agreement; conclusion was indicated for the Supplier’s delivery to the Buyer, or, if no destination was indicated, the place of delivery.
- Defective parts which have been replaced must be made available to: The disposition of the supplier and becomes his property.
- If the Buyer has made such a notice as mentioned in paragraph 29 and it turns out that there is no defect, for which the Contractor bears responsibility, is the responsibility of the Contractor the right to compensation for the costs incurred by the notification; him.
- If the Supplier fails to fulfil its obligations in According to clause 30, the Purchaser may stipulate in writing a final reasonable period of time for the performance of the Supplier’s obligations which do not may be shorter than a week. If the Supplier fails to fulfil its obligations within expiry of the deadline, the Purchaser has the right to carry out himself, or by one of the him engaged third parties to have carried out, necessary repairs at the Supplier’s expense and risk. In the event of successful repair work carried out by the Purchaser or by third parties, the Supplier’s reimbursement of reasonable costs, which has been inflicted on the Purchaser, constitute a complete fulfillment of the Supplier’s obligations as a result of the defect.
- If the repair of the Product in accordance with clause 36 does not succeed,
a) the Buyer shall be entitled to a proportionate reduction provided that: that the refusal does not in any case exceed 15% of the purchase price, or
(b) the Purchaser may, if the defect is so material that it significantly limits the Buyer’s usefulness of the Agreement; with respect to the Product or a substantial part thereof, by Written notice to the Supplier terminate the Agreement in respect of the part of the Product that cannot be used on due to the defect the manner envisaged by the parties. In this case, the purchaser is entitled to: compensation for the loss, costs and damages suffered by him; however, no more than 15 per cent of the part of the purchase price that covers that part of the Product covered by the termination.
- Notwithstanding paragraphs 23 to 37, Supplier’s liability for defects not for any part of the Product beyond one year from the end of the liability period referred to in paragraph 27; or from the end of any other liability period provided by the parties must have agreed.
- The Supplier has no liability for defects beyond that in Points 23-38 prescribed. This applies to any loss, the defect may cause, including business interruption, lost profits and other indirect loss. This limitation of the Supplier’s liability applies not if he is guilty of gross negligence.
APPORTIONMENT OF LIABILITY FOR DAMAGE CAUSED
OF THE PRODUCT
- The supplier is not liable for property damage, which The Product causes after delivery and while it is in the Buyer’s possession. The Supplier is also not liable for damage to products manufactured by the Purchaser or on products in which The buyer’s products are included.
If the Supplier is liable to third parties for such property damage as described in the first paragraph, the Purchaser shall: defend the Supplier and indemnify him. If a third party makes a claim for damages against a by the parties for such injury as referred to in this paragraph shall: that Party shall immediately notify the other Party thereof in writing. The Supplier and the Buyer are mutually obliged to let summon before the court or tribunal hearing claims for damages brought against one of them on the basis of: damage allegedly caused by the Product. Responsibilities between However, the Supplier and the Buyer shall be determined in accordance with clause 46. The limitation of the Supplier’s liability in this clause the first paragraph shall not apply if the Supplier has made guilty of Gross Negligence.
- Either Party has the right to interrupt the performance of its obligations under the Agreement, to the extent that performance prevented or made unduly burdensome as a result of force; Majeure, which means any of the following circumstances: labor conflict and any other circumstance not provided by the parties; is in control of, such as fire, war, large scale military mobilization, rebellion, requisition, seizure, embargo, restrictions on the use of impetus, currency and export restrictions, epidemics, natural disasters, extreme natural phenomena, acts of terrorism; and defects in or delays in deliveries from subcontractors; due to any of the circumstances referred to in this paragraph. A circumstance, as mentioned in this paragraph, irrespective of whether it occurs before or after the conclusion of the Agreement provides only a the right of the party to interrupt the performance of its obligations if: its impact on the performance of the Agreement could not be foreseen at the time of conclusion of the Agreement.
- The party pleading a force majeure circumstance: shall without undue delay provide to the other Party; Written notice of the occurrence and termination of the circumstance. If one party fails to give such notice, the other the right to compensation for the additional costs incurred; and which he could have avoided if he had received Message.
Prevents the force majeure Buyer from fulfilling his
obligations, he shall reimburse the Supplier for the costs incurred by the
which it incurs by securing and protecting the Product.
- Notwithstanding anything else resulting from these General Provisions Conditions, either party has the right to terminate the Agreement by Written notice to the other party if the performance of the Agreement discontinued in accordance with paragraph 41 for more than six months.
- Notwithstanding any other provision of these General Conditions regarding the interruption of the performance of the Agreement, each party shall have the right to: to discontinue performance of its obligations under the Agreement; if it is clear from the circumstances that the other Party will not meet its obligations. The party interrupting performance of the Agreement shall immediately notify Written notice thereof to the other party.
- Unless otherwise stated in these General Conditions, neither party shall be liable to the other party for: operating loss, lost profits, lost utility, loss of business opportunities or for any other consequential or indirect loss.
DISPUTES AND APPLICABLE LAW
- All disputes arising out of the Agreement and everything related hereby, shall be definitively determined in accordance with the International Chamber of Commerce (ICC) rules on arbitration of a or several arbitrators appointed in accordance with these; rules.
- The Agreement is governed by the substantive law of the Supplier’s country.