(a) These T&Cs form an agreement framework for each individual sales or services agreement entered into with EIZO Europe GmbH, with its registered office at Helmut Grasshofstrasse 18, , D-41179 Mönchengladbach, Belgium office at Antwerpsesteenweg 22, 2860 Mechelen (Sint-Katelijne-Waver), Belgium, and a party named as CUSTOMER, which enters into this agreement in connection with its professional activities.
(b) In the event of conflict between
(b) In the event of conflict between these T&Cs and any specific conditions stated in an order of, or any other document with, a specific Customer, these T&Cs shall take precedence unless the specific conditions were explicitly agreed in writing by the Customer and Seller, in which case the remainder of these T&Cs shall remain in force. The Customer’s T&Cs are not applicable.
(c) If any of these T&Cs cannot be enforced, this shall not affect the validity or enforceability of the remainder of such term and condition or these T&Cs in their entirety.
(d) All modifications to these T&Cs must be agreed in writing. The same applies to this variation clause.
2. QUOTES & ORDERS
(a) All quotes established by the Seller shall be non-binding and considered as an invitation to tender, and the parties shall only enter into a contractual relationship in accordance with the procedure described herein. Orders from the Customer are binding upon the Customer.
(b) All orders are subject to approval by the Seller and the agreement is deemed to be entered into either when the Seller sends a written order confirmation, or when the Seller delivers the goods or performs the services ordered. The Seller must be informed of any errors in the order confirmation in writing within three days of receipt of the order confirmation. After this period of three days, the information mentioned on the order confirmation will be considered to be correct.
(c) All orders are subject to credit approval by the Seller, who in light of negative information regarding creditworthiness, may, at any time, modify the Customer’s credit and payment terms. If there is any reason for the Seller to believe that the Customer’s ability to make payments is impaired, the Seller may suspend further deliveries until such time as the Customer has provided a bank guarantee as stated in article 8.
(d) The Customer agrees to send the Seller a written order as confirmation of any verbal orders, wherein the confirmation reference provided is clearly indicated, so that the Customer and the ordered goods can be identified. Otherwise the Seller reserves the right not to fulfil the order.
(e) If the Seller processes a verbal order that has not been confirmed by the Customer, the order is nevertheless binding upon the Customer.
3. THE CUSTOMER’S SPECIFIC OBLIGATIONS
(a) The Customer must, prior to and during the execution of this agreement, provide correct information to the Seller (including delivery address, bank account numbers, the company’s registered name, VAT number and financial information) and must specify in its order any specific requirements with regard to the saleability of the goods or services or their suitability for a specific purpose or use.
(b) The Customer is responsible for safeguarding all data and must take appropriate precautions to prevent the loss of this data.
(c) Upon the reasonable request of the Seller, the Customer shall provide the Seller with all financial data that could be useful for credit checks.
(d) The Customer is wholly responsible with regard to any licence agreement that is affected by, involved in or related to the use of the goods purchased or the services performed hereunder and shall comply with all licensing conditions that have been provided by the manufacturer of said goods.
(e) The Customer shall comply with all local, European and American import and export regulations with respect to the goods or services.
(f) The Customer shall observe the manufacturer’s guidelines for the goods and the services performed by the Seller.
4. PRODUCT AND SERVICE DESCRIPTION
(a) Upon delivery to the Customer, the goods shall conform with the manufacturer’s specifications provided for such goods and any work performed by the Seller on such goods shall comply with the Customer’s specifications relating to such work, to the extent that these have been clearly communicated in accordance with article 3(a) and accepted by the Seller.
(b) Unless otherwise specified, goods sold by the Seller are not designed, intended or authorised for use in life-sustaining, life-support, nuclear, military or other applications in which it can be reasonably expected that a problem with the product could result in personal injury, death or catastrophic damage to property. If the Customer uses or sells the goods for such applications: (i) the Customer acknowledges that such use or sale is at the Customer’s own risk; (ii) the Customer agrees that the Seller and the manufacturer are not liable, partly or wholly, for any claims or damages resulting from such use; and (iii) the Customer agrees to indemnify, defend and hold the Seller and the manufacturer of said goods harmless against any claims, losses, damage, costs, expenses and liability stemming from or in connection with such use or sale.
(c) The Seller is not responsible for the modification or alteration of goods to conform to statutory requirements that were not in effect at the time of receipt or ordering, unless such was specifically requested by the Customer in accordance with article 3(a) and accepted by the Seller.
(d) The Customer is aware that product specifications may change over the course of time and should therefore ensure that it remains informed about future specifications and about the availability of any goods and services. The Seller cannot guarantee the uninterrupted availability of goods.
(e) All product specifications, adverts and any other form of public information regarding goods are non-binding unless specifically agreed in the order confirmation.
(f) When the Seller provides its own services to the Customer, then these should be described in detail and accepted by the Seller. When the Seller provides services, the Customer is always, unless otherwise agreed, considered as the manufacturer of the goods and the Seller always acts on behalf of and on the instructions of the Customer. The services provided by the Seller do not include the application for certain certificates or registrations (including CE, WEEE), or labelling or branding. All services provided by the Seller free of charge must be verified by the Customer and shall not be binding upon the Seller. Paid services always assume the cooperation and support of the Customer. Unless otherwise agreed, no service entails an obligation to achieve a certain result.
5. DELIVERY AND TITLE
(a) The Customer acknowledges that delivery dates provided by the Seller are estimates or purely indicative and non-binding, since delivery is conditional upon the timely receipt of these goods by the Seller from its suppliers. The Seller is not liable for non-delivery on these dates.
(b) The delivery of the goods to the haulier will be considered as delivery to the Customer and all risks are thereupon passed to the Customer.
(c) The Seller is entitled to deliver in part or in instalments. Each of said deliveries will be considered as a separate agreement and the T&Cs will therefore be applicable to each of these deliveries.
(d) The Customer shall inspect the goods upon delivery and inform the Seller immediately in writing of any damage, defects, errors in delivery or erroneous quantities, no later than one week after delivery, after which the goods are deemed to be irrevocably accepted, unless there was a hidden defect or fault that could not be detected during a standard inspection. If the Customer discovers a hidden defect of fault after this time, the Customer shall notify the Seller within a week. If upon the Customer’s request the Seller delivers goods to a third party, the Customer is responsible for ensuring that this third party acts accordingly.
(e) Title to the goods is transferred upon receipt of full payment of the goods, the principal amount as well as any interest and indemnities. The Customer shall store the goods separately from other goods of the Customer and shall clearly mark them as being the property of the Seller.
(f) The Customer has the right to sell the goods to third parties in the normal course of business, on condition that the Customer assigns all rights vis-à-vis this third-party buyer to the Seller. The Seller accepts such assignment. The Seller grants the Customer the revocable right to invoice its customer and to receive payment on behalf of the Seller, unless the Customer fails to pay or the Seller believes that the Customer’s ability to make payments may be impaired. The Customer is nevertheless obliged to pay all amounts due under this agreement.
(g) In the case of direct delivery to a customer of the Customer, or in the case of delivery by the Customer before full payment to the Seller, the Customer shall pass on the obligations contained in this article to its customer.
(a) Unless otherwise specified, the prices quoted by the Seller are:
(i) exclusive of VAT and any other taxes;
(ii) exclusive of transport, packaging, customs, assembly, installation and insurance;
(iii) exclusive of any release certificates (for example CE certificates, if the Seller performs integration services);
and the Seller shall have the right to charge extra in respect of the above items.
(b) The prices are as quoted by the Seller and are applicable for the period specified in the quote provided by the Seller. If no period is specified, the prices are applicable for thirty (30) days. Notwithstanding the foregoing, the Seller has the right to increase prices in the event of an objective increase in the Seller’s costs, including, but not limited to, costs for exchange rates, delivery by third parties and other circumstances beyond the Seller’s reasonable control or due to a breach in the contract by the Customer. The Seller informs the Customer of the new prices in writing and invites the Customer to accept them. If the parties cannot come to an agreement regarding the new prices within a reasonable time, the Seller may terminate the agreement and cancel any pending orders.
(c) The Seller may adjust the prices proportionally or charge a higher price for goods that have already been invoiced, if the Customer does not order the quantities upon which the quote was based.
(a) An invoice is payable upon receipt thereof, without offset or deduction, and shall be paid within thirty (30) days from the date of the invoice, by means of bank transfer, unless the Seller has specified other payment terms. Payment by means of cheque or bill of exchange will only be accepted if explicit prior written consent has been given by the Seller. The charges for payment (including, but not limited to, bank transfer costs) are always payable by the Customer.
(b) The Seller reserves the right to suspend any delivery if payment has not been received in accordance with article 7(a), in accordance with any alternative payment terms agreed in writing or if there is any indication that the financial situation of the Customer is deteriorating.
(c) All invoices that remain unpaid on the due date shall, by law and without any prior notice, be increased with interest at a rate of 10% per annum as from the invoice date, this interest being due on a monthly basis. Additionally, a fixed compensation of 10% of the invoiced amount shall be payable by law, without prejudice to the right of the Seller to claim full compensation for the actual damage suffered.
(d) No cash or other discount will be granted unless agreed in writing.
(e) All outstanding invoices are immediately due and payable when the Customer is in default of payment or otherwise in breach of any provision of these T&Cs.
(f) The Customer is not entitled to invoke the right of retention in any form, to withhold performance in respect of claims or to offset any amounts unless these rights are based on a court ruling or the counterclaim has been acknowledged in writing by the Seller.
8. BANK GUARANTEE
The Customer is required to comply with its payment obligations upon the first request by the Seller and to provide a bank guarantee from an established European credit institution or any other security instrument reasonably selected by the Seller. The Seller has the right to request this bank guarantee at any time, be it prior to delivery, during or after the completion of the delivery. As long as the Customer has not provided a bank guarantee, the Seller may suspend any (further) deliveries, without any liability to the Customer or any third party.
9. DRAWINGS ETC.
(a) All drawings, descriptive weights, dimensions and the descriptions and illustrations contained in the sales literature, price lists, performance estimates or other specifications provided by the Seller are purely approximations: they are not part of the agreement, nor do they constitute a guarantee. They do not bind the Seller. Furthermore, all drawings and technical documents issued before or after conclusion of the agreement for the use or information of the Customer and any other information that the Seller may provide the Customer, including specifications, shall not be copied, reproduced or disclosed to third parties without the prior written consent of the Seller.
(b) The product specifications may change over the course of time.
10. LIMITED WARRANTY
(a) If it is found, on due examination by the Customer, that the goods do not comply with the manufacturer’s specifications or that the work performed by the Seller does not comply with the Customer’s specifications, or that paid services do not meet the average quality on the market, the Seller shall be liable under the warranty, which is limited to the Seller (i) refunding the Customer at market price for such goods or services (without interest and in all cases limited to the purchase price), (ii) repairing such goods, or (iii) replacing such goods or performing the services, on the condition that the Customer can satisfactorily prove the defect and returns the goods to the Seller. Repair or replacement of said goods does not prolong the warranty.
(b) The Customer cannot claim any warranty rights if it has not fulfilled its obligations under article 5 (d). The Customer is obliged to notify the Seller immediately or in any case no later than one week after the discovery of any defects or faults by its customer or any other end user.
(c) In any event, each warranty expires 12 months after delivery.
(d) The Seller shall transfer to the Customer whatever transferable warranties and indemnities the Seller receives from the manufacturer of the goods or services, including any transferable warranties and indemnities with regard to infringement of patents, in which case no separate warranty as defined under article 10 (a) will be granted by the Seller.
11. RETURNED GOODS AND CANCELLATIONS
(a) No return of goods shall be accepted by the Seller without a Return Material Authorisation (RMA), which will be issued by the Seller only for objective and justifiable reasons. A request to return goods due to visible defects must be submitted within seven (7) days of their receipt. A request to return goods due to hidden defects must be submitted within seven (7) days of their discovery and in any case no later than 12 months after receipt of said goods. The Customer loses the right to return said goods after expiry of said time period. Goods and accessories must be returned in the manufacturer’s original transport packaging, including all packing materials. All goods to be returned shall be returned freight prepaid in the manner stipulated in the RMA. If goods are returned on the grounds that they are defective, a complete description of the nature of the defect, as well as the date and the circumstances of its discovery must be included with the returned goods. If the Seller agrees to the return or cancellation of goods, it reserves the right to invoice return or cancellation costs, including those costs specified in the RMA.
(b) If the Customer returns goods claiming warranty rights and these goods are found to be fault-free, the Customer shall bear all costs, including transport, handling and inspection costs.
(c) In case of cancellation by the Customer between the time of placing the order and delivery, a cancellation fee of 70% of the total value of the ordered goods is due.
12. EXCLUSION OF LIABILITY
(a) The Seller shall be liable for (i) its own wilful default or gross negligence, (ii) its own fraudulent acts (iii) any damage resulting from the death or personal injury caused by the negligence of the Seller or its employees, appointees or agents, or (iv) any damage based on other mandatory laws that do not allow the limitation of the Seller’s liability. All other liability is explicitly excluded.
(b) The Seller’s liability shall be limited to direct loss and shall not include indirect or consequential loss. Hence, the following shall be excluded: loss of income, loss of turnover, loss through closure, increased manufacturing or operational costs, loss of customers and loss of reputation. Any amount recovered by the Customer from the Seller for any claim shall not exceed the purchase price paid by the Customer for the goods giving rise to such claim, irrespective of the nature of the claim, whether in contract, tort, warranty or otherwise.
(c) The Seller shall not be liable for the loss of or damage to software programmes during repair or upgrade of any goods, regardless of whether they are under warranty.
(d) The exclusion of liability described in this article 12 shall also apply to employees of the Seller and any other persons acting on its behalf.
13. FORCE MAJEURE
(a) If the Seller, at any given time, is unable to perform its contractual obligations, or if there is loss, damage, injury or delay in delivery as a result of or caused by circumstances beyond the Seller’s control, including (but without prejudice to the general scope of the foregoing) a criminal act committed by a third party, a shortage of goods, an act of war (whether declared or not), an act of terrorism, civil war, a civil uprising, an accident, strikes or lock-outs, man-made disasters, natural disasters or restrictions imposed by any local municipal or government authority (customs authorities included), whether they be Belgian or foreign, the delivery and any other obligations will be suspended for the Seller and the time within which the Seller must perform said obligations shall be extended by the period of the delays or, if the force majeure continues for a period of more than 4 weeks, the Seller may, at its own discretion, cancel any order or remaining part thereof without liability by giving notice of such cancellation to the Customer.
(b) If in such circumstances the agreement is terminated in whole or in part, the Customer shall be liable to pay the Seller for any goods delivered or services rendered under each and any agreement on a pro-rata basis.
14. INTELLECTUAL PROPERTY RIGHTS AND SOFTWARE
(a) The Customer acknowledges that rights relating to trademarks, trade names, copyrights, patents and other intellectual property rights in connection with the goods are not transferable to the Customer, unless explicitly authorised in writing.
(b) The Customer agrees to indemnify the Seller against all claims, damages, costs (including legal costs calculated on an indemnity basis) made by any person or company which the Seller may incur, either as a result of work done in accordance with the Customer’s specifications, or for the infringement of any intellectual property rights resulting from such customisation.
(c) If an order includes software or other intellectual property, such software or other intellectual property is provided by the Seller to the Customer subject to the copyright and user licence, the terms and conditions of which are set forth in the licence agreement that accompanies such software or intellectual property. Nothing herein shall be construed as granting any rights or licences to use the software in any manner or for any purpose not expressly permitted by such licence agreement. Unless otherwise set forth in writing by an authorised signatory of the Seller, the Seller is not the licensor and the Customer acquires the licence directly from the manufacturer or the manufacturer’s licensor.
15. DATA PROTECTION
The Seller shall treat any information it collects about the Customer in accordance with the EU data protection principles and their implementation under the applicable national law of the Seller and other legislation relating thereto. The Customer shall have the right to access its personal data and to
correct it if necessary, in accordance with the EIZO Privacy Protection Policy, which is available upon request.
The Seller reserves the right to subcontract any part of any work or the supply of any goods or services.
17. THIRD PARTY CLAIMS
The agreement or agreements to which these T&Cs apply is between the Customer and the Seller only. No third party shall acquire any rights against the Seller and the Seller shall have no liability with regard to any third party arising out of or in connection with any agreement. Furthermore, the Customer shall indemnify the Seller against any claims, legal action or demands by third parties in tort or otherwise, directly or indirectly arising from or in connection with the goods (or use thereof) or the services provided, to the extent that such claims, legal action or demands are caused by or are attributable, even partly, to the Customer.
The agreement, of which these T&Cs are part, may be assigned in whole or in part by the Seller without the Customer’s prior written consent. The Customer shall not assign or purport to assign these T&Cs or the benefit derived therefrom to any other person without the written consent of the Seller.
The headings of these T&Cs are solely for convenience and shall have no effect on the interpretation thereof.
If the Seller fails, on any given occasion, to insist on the performance of these T&Cs, it shall not be deemed a waiver of rights by the Customer or acceptance of any deviation from these T&Cs.
Any notice required in these T&Cs shall be in writing.
1. The Seller may, without prejudice to its right to claim compensation, terminate this agreement by giving notice in writing, if:
(a) exceptional circumstances make a professional collaboration between the Parties impossible;
(b) the Customer is in breach of the agreement and/or these T&Cs or as set out in law, to the extent that the Customer does not rectify the situation within a reasonable period.
2. When the Seller terminates the agreement, the Seller may suspend and cancel any confirmed delivery and claim all outstanding amounts immediately.
These T&Cs shall be governed by and construed in accordance with the laws of Belgium, excluding the UN Convention on the International Sale of Goods, and the courts of Brussels shall have exclusive jurisdiction for all disputes arising from or in connection with these T&Cs, or in connection with any order, contract, delivery of goods or provision of services between the Seller and the Customer. Nevertheless, the Seller reserves the right to serve a writ of summons on the Customer at the Customer’s registered office.