Algemene Verkoopsvoorwaarden

General

1.1 Every offer and every sale of goods by Phormium NV, Weverslaan 15, 9160 Lokeren, Belgium, company number 1020.951.427 (“Phormium”) will be governed by these general conditions of sale, which, in their entirety, are part of the agreement between Phormium and the buyer. Deviations from these conditions are not opposable, unless with the prior written approval of Phormium.

1.2 By accepting these general conditions, the client/buyer unconditionally waives the application of his own general conditions (of purchase).

1.3 In the context of permanent and successive trade relations, these general conditions remain applicable to future orders, purchase orders or transactions, even without further reference to these conditions.

1.4 Any offer or pricing by Phormium is non-binding and, at all times, subject to revocation, unless explicitly agreed otherwise by the parties.

1.5 A sale agreement, or other agreement, between the parties, is only established upon written acceptance by Phormium of the client’s purchase order. Phormium is not bound by statements made by the sales staff, representatives or other persons.

Prices and payment

2.1 Phormium reserves the right to modify its prices in function of altered market conditions and (cost price) factors (including, but not limited to salary costs, raw material prices, material costs, and other operational costs). New prices will apply to all orders placed after communication of the new prices to the client.

2.2 Unless agreed otherwise in writing, all prices of Phormium are net prices, without discounts and not including VAT or other taxes, duties or levies; in standard packaging and with “Ex Works” delivery.

2.3 Payment of invoices shall be made in full, without any discount or set-off, within the term indicated on the order confirmation and invoice. The payment term is an essential element of the agreement. Unless agreed otherwise, all invoices are payable in EURO within 30 days following the invoice date.

2.4 Phormium reserves the right to refuse cheques and bills of exchange. Acceptance is always subject to payment, which is only considered to have taken place when the funds are freely available to Phormium. Any costs or taxes are fully borne by the client. In the event of a protested cheque or bill of exchange, Phormium is entitled to request immediate and full payment of all outstanding debts of the buyer, even if other cheques or bills of exchange have been presented for the payment of these orders. The acceptance of payment by cheques or bills of exchange does not imply a change of the place of payment.

2.5 Any credit granted by Phormium to a client can be revoked or limited at any time and with immediate effect.

2.6 The client is not entitled to compensate or set-off any of its debts towards Phormium with any claim it might have against Phormium.

2.7 Any outstanding invoices shall bear interest at 12%/year by operation of law and without any notice of default being required.  In addition, the buyer shall pay a fixed compensation of 10% of the outstanding invoice, notwithstanding Phormium’s right to claim additional compensation if the actual damage exceeds the fixed compensation.

2.8 In the event of breach by the buyer to its payment obligations, or in the event an insolvency, winding up or similar procedure is initiated by or against the buyer, any outstanding invoices of the buyer shall become immediately due and payable.

2.9 In addition, Phormium reserves the right to demand prepayment or additional securities, in the event doubt arises concerning the buyer’s solvency or liquidity. In the event of refusal by the buyer to do so, Phormium is entitled (without prejudice to any other right stipulated in these conditions) to terminate the agreement, suspend further deliveries and demand immediate settlement of all outstanding claims.

Delivery

3.1 Delivery dates or terms are indicative and non-binding. Phormium cannot be held liable for any delay in delivery.

3.2 Phormium has the right to make partial deliveries. Each partial delivery shall be considered as a separate agreement.

3.3 Discrepancies of up to 5% of the amounts ordered are acceptable and do not constitute a violation of Phormium’s delivery obligations.

3.4 Unless stipulated otherwise in the order confirmation, all deliveries are carried out on Ex Works basis.

3.5 If the buyer refuses or fails to take delivery of the goods, Phormium shall be entitled to dispose of the goods. The buyer shall fully compensate Phormium for any loss or costs incurred as a result of such refusal or failure.

Risk and insurance

4.1 Risk shall pass on delivery of the goods. Delivery shall take place in accordance with the conditions agreed between parties (INCOTERMS 2010).

4.2 As from delivery and until title in the goods passes to the buyer, the buyer shall insure the goods for their full value with a reputable insurance company. Upon the first request of Phormium, the buyer shall submit proof of such insurance to Phormium.

Retention of title and securities

5.1 Until payment in full to the seller for the goods the goods shall remain the property of the seller.  Notwithstanding the foregoing, the risk in the goods and all liability to third parties in respect thereof shall pass to the buyer on delivery.

5.2 The buyer shall be entitled to transform the goods or to incorporate them in a new product or products. In that case the seller reserves to himself the legal and equitable title to the final product or products into which the goods are incorporated or mixed. The buyer shall store the final products separately and property of these products shall remain with the seller until full payment will have been made to the seller for the goods.

5.3 The buyer may sell the goods in the normal course of its business but on condition that the buyer, in a fiduciary capacity as bailee of the goods, and for so long as he has not fully discharged his debt to the seller, shall hold and pursue claims for the proceeds of their sale equal to the price of the goods for and on behalf of the seller. The buyer shall fully pursue such claims and if necessary, shall recover the sums due by legal process. The buyer shall if so required by the seller, allow the seller to conduct in the buyer’s name legal proceedings in respect of the monies due on the sale of the goods. Any sums recovered by the seller as a result of such proceedings (including sums accepted by the seller in settlement thereof whether or not equal to the sums claimed) shall be applied to the payment of the monies due to the seller from the buyer and then to the reasonable costs incurred by the seller in the course of such proceedings. Any balance remaining shall be paid to the buyer.

5.4 Prior to the sale of the goods, the buyer shall, so far as reasonably practicable, store the goods separately from similar goods of the buyer, mark the goods as the property of the seller and shall not remove, obliterate or in any manner alter any label, mark or other means the seller may have of identifying the goods.

5.5 Any failure by the client to fulfil its obligations entitles Phormium to take repossession and freely dispose of the goods. The buyer hereby irrevocably entitles Phormium, its employees or representatives to enter its premises and warehouses during normal business hours in order to inspect the goods that are subject to the retention of title and/or take repossession of the goods.

5.6 If the retention of title would be invalid or unenforceable in any jurisdiction where the products are sold, Phormium shall have the broadest possible security rights permissible by local legislation.

5.7 Phormium reserves the right to compensate or set off any debt of the buyer towards Phormium against any amount due to the buyer.

Liability

6.1 The buyer shall inspect the goods immediately upon delivery. A non-conforming delivery or visible defects must be reported to Phormium by registered mail within 3 days as from delivery. In the absence of such notification, the goods shall be deemed accepted by the client. Phormium will bear no responsibility whatsoever for any complaints notified after such term.

6.2 Defects, other than mentioned in clause 6.1, must be reported to Phormium by registered mail within a period of 30 days after detection of such defect. Phormium will bear no responsibility whatsoever for any defects notified after such term.

6.3 If a defect is detected, Phormium can elect at its sole discretion to repair or replace the goods. If the defect cannot be repaired, the buyer may elect (i) either to return the damaged goods and be reimbursed, (ii) or keep the goods and be partially reimbursed. In the event parties fail to agree on the amount to be reimbursed, an independent expert will be appointed by the parties in order to determine the part of the price that should be reimbursed.

6.4 Without prejudice to the stipulations of this clause 6, Phormium is only liable in the event of wilful misconduct or gross negligence and only for direct and foreseeable damage. Phormium cannot be held liable for any kind of indirect or consequential damage (including, but not limited to, loss of profit or loss of opportunity or clientele). Phormium is not liable for deception, fraud and gross or intentional faults committed by its employees, appointees or representatives.

6.5 Phormium’s liability shall in any case be limited to the equivalent of twice the invoice value of the goods that are the object of discussion or infringement, with an absolute maximum of 500,000 EUR per year for all claims in aggregate.

6.6 Without prejudice to the foregoing, Phormium’s liability for traded products (not produced by Phormium) shall in any event be limited to the liability of the producer.

6.7 Unless agreed otherwise in writing, any liability of Phormium (either contractual or extra-contractual) shall lapse upon the expiry of 2 years following the delivery date.

6.8 The client shall indemnify and hold Phormium harmless from any third party claims directly or indirectly related to the goods delivered by Phormium. The client shall make these general conditions opposable to his own clients.

Force majeure

7.1 In the event of force majeure, Phormium shall be automatically released and not bound to fulfil its obligations towards the buyer. Phormium is furthermore not liable for any damage that is a direct or indirect consequence of force majeure. As events of ‘force majeure’ shall be considered: circumstances or events beyond Phormium’s reasonable control, which (in whole or in part) hinder or prevent Phormium from fulfilling its obligations towards the client, including but not limited to war, rebellion, fire, flood, social conflicts, unavailability or shortage of stock or raw materials, machine breakdown, unavailability of transport, electrical, IT, internet or other telecommunication disturbances, decisions or interventions of governments (including a rejection or loss of permits) and faults by third parties.

7.2 In the event of force majeure, Phormium’s obligations are suspended. If the force majeure circumstances last longer than one month, Phormium is entitled to terminate the agreement with the buyer without any court intervention being required, and without any compensation due to the buyer.

7.3 In the event of shortage of stock resulting from force majeure circumstances, Phormium is entitled to distribute its available stock among its clients at its own discretion.

Applicable law and dispute regulation

8.1 The place of execution of the agreement between parties shall always be the company headquarters in Lokeren, Belgium.

8.2 These general conditions, along with any relation between Phormium and its clients, shall be governed exclusively by Belgian Law, with the exclusion of the rules on conflicts of laws and the UN Convention on the International Sale of Goods dd. 11 April 1980.

8.3 The courts of the judicial district Dendermonde will have exclusive jurisdiction for any dispute between parties. Without prejudice to the foregoing, Phormium reserves the right to initiate legal proceedings against the buyer before each competent court of law.