1.1. Unless otherwise stipulated in a written agreement signed by the SRL SIMTECH, whose head office is located at Rue de la Grande Couture 14 at 7503 Froyennes – Belgium, (hereinafter referred to as “the Buyer” or “SIMTECH”), these conditions apply to any order for materials, equipment or services of any kind (hereinafter referred to as “Products” or the “Services”) issued by the Buyer for products delivered / manufactured by the supplier (hereinafter “the supplier” or “the
1.2. Notwithstanding anything to the contrary in its terms and conditions of sale, the Seller acknowledges that his acceptance of the order carries the express waiver of the Seller to all its conditions of sale and the express acceptance of present conditions.
1.3. An order will be considered as final and contractual as soon as the Buyer receives a writing, a message the Supplier’s acknowledgment of receipt or confirmation of sale within three (3) business days of the date of the order. Notwithstanding any stipulation to the contrary the Buyer shall have the right to terminate the order, without penalty if the acknowledgment of receipt of the order or the confirmation of sale has not been returned by the Seller in the three (3) days from the date of the order.
Any stipulation of the acknowledgment of receipt of the order modifying, amending or contradicting any of the provisions of the these General Conditions of Purchase will be considered as unwritten.
1.4. An order bearing the mention “price to indicate” will be valid only from the moment the Buyer has accepted by writes said price to indicate. Similarly confirmation by the supplier of an order but at a price different from that mentioned by the Buyer in his order does not constitute a firm and final order since it does not agreement on the price.
2. PRICE, INVOICING AND PAYMENT
2.1. The price applicable is that mentioned in the order or that which results from the formulas of calculation of prices stipulated in the command. The price is always stipulated firm and can not be revised, indexed or adjusted currency fluctuations.
2.2. Unless otherwise stipulated, the price includes packaging and transport costs and any other cost, tax, risk or load in connection with the execution of the command. No additional cost, of any kind, will be authorized, except with the prior written consent of the Buyer specifically indicated on the order form.
2.3. The Seller shall invoice the Buyer in accordance with the billing schedule defined in the order. The bills number or order reference, the quantities and description of the Products supplied, the date and delivery note reference and detailed prices, and must be accompanied by any reference document necessary. Unless otherwise stipulated in the order, Seller will issue an invoice per purchase order and unless a different billing address is specified, invoices must accompany the Products. Non-invoices complying with the stipulations mentioned above shall be considered by the Purchaser as invalid and will be returned to the Seller.
2.4. Unless otherwise stipulated in the order, invoices will be payable sixty (60) days end of month date of Billing or discount of two decimal five percent (2.5%) if payment within five (5) business days.
2.5. A deduction, the percentage of which is set in the Order can be made as a guarantee by the Buyer on the invoices. The amounts deducted are paid to the Seller at the end of the Guarantee Period after receipt by the Seller of the payment call letter and deduction of any sums still due to the Seller on these dates.
Payments are made, at the option of the Buyer, exclusively by transfer or payment and without domiciliation on a bank account specified on the invoice.
2.6. If the Buyer and the Seller have debts and debts, regardless of their origin, the Buyer reserves
the exclusive right to offset its debts with its own claims against those of the Seller or to avail itself of the right to retention or exception of non-performance, as if all the debts and debts proceeded from a single contractual commitment.
3. PACKAGING AND DELIVERY
3.1. Unless specific packaging required by the Buyer in the order, the Seller shall deliver the Products in a package appropriate, given the nature of the Products and the precautions to be taken to protect the Products against inclement weather, corrosion, loading accidents, transport and storage constraints, vibrations or shocks etc.
In any case, the Products must be sealed, packaged, marked, and generally prepared for shipment. The packaging and delivery will also have to be:
(i) Conform to commercial uses,
(ii) Acceptable by carriers for least cost shipping,
(iii) Adapted to ensure the goods are in good condition at their destination.
3.2. The Seller shall mark all packaging and containers with any instructions for lifting, handling and
necessary transportation, identifying and clearly marking items that require care, storage and / or
particular transport and indicating the precautions to be taken.
The Seller shall label each package and container with shipping information, order numbers,
date of shipment, the respective names and addresses of the shipper and the consignee.
The Seller is obliged to warn the Buyer of defects and defects encountered during manufacture.
3.3. The Seller shall be held solely liable for any damage to the Products, or any expense
additional, caused by incorrect or inappropriate packaging, marking or labeling, even during transport or upon receipt of the goods, unless the damages or expenses are the consequence of the particular instructions packaging, marking or labeling provided in writing by the Buyer.
3.4. Upon delivery of the Products, the Seller shall send to the Buyer, at the time of shipment, a packing slip. delivery in two copies, indicating:
(i) the date and complete reference of the purchase order,
(ii) the full address of the respective warehouses of the shipper and the consignee,
(iii) a detailed description of the Products,
(iv) the total number of packages in the shipment,
(v) the identification of the gross and net weight of each package,
(vi) the means of transport and
(vii) the date of shipment.
3.5. The method of delivery and the respective obligations of the Parties shall be indicated in the order, subject to Incoterms 2010 (ICC). Unless otherwise specified, the transportation of the Products shall be at the risk and expense of the Seller. In all cases, the Seller shall provide adequate insurance covering the Products until their arrival at the premises of the Buyer or any other destination approved by him.
4. DELAYS AND DELAYS OF DELIVERY
4.1. Delivery times and dates are indicated in the order. Seller’s acceptance of the order
his irrevocable commitment to respect the deadlines and delivery dates thus defined. In the absence of mention in the voucher order, the products ordered are deemed to have to reach the buyer within 15 days from the date of the order .
4.2. Delivery times and dates indicated in the order are essential and can not be modified
without the written consent of both parties.
Advance deliveries are not permitted without the prior written consent of the Buyer. In any case, the Seller will not right to no premium for early delivery.
The Seller shall promptly inform the Purchaser in writing of the detailed circumstances of any event likely to delay the execution of the order, before the delivery of it, without however being able to claim for this reason an extension delivery time. In all circumstances, the Seller shall make every effort to minimize delays deliveries and the consequences of these delays.
4.3. Penalties of delay: the amount of the penalties of delay is calculated on the basis of the value of the delayed order and is of 1% per day late for the first three weeks beyond, it will be 2% per day. Penalties required will not exceed not 15% of the value of the order.
4.4. Cancellation: except in cases of force majeure, the Buyer will have the right to cancel the order without the Seller being able to claim any compensation or compensation and without prejudice to the rights of the Buyer to claim compensation from Damages, losses or damages suffered as a result of the delay:
(i) if the planned delivery occurred too late in relation to its needs, or
(ii) if any delay has not been previously notified to him in writing.
5. CHANGES AND SUBSTITUTIONS
5.1. The Buyer will have the right to modify the order, without this modification being able in any way to vitiate or invalidate the command. Seller shall promptly inform the Purchaser of any subsequent price changes or schedule. modifications requested by the Purchaser and such modifications shall be agreed in writing by the Parties in a amendment to the order or in a new order signed by both Parties.
5.2. The Seller is not authorized to make or propose any modification or substitution of supply or delivery of Non-conforming products without the prior written consent of the Buyer.
6. EXECUTION, INSPECTION AND REFUSAL OF PRODUCTS
6.1. The Seller acknowledges that during the execution of the order, the Buyer will have access to the Seller’s premises in order to monitor manufacturing processes or give special instructions, and control and / or test the Products ordered, in using the test and control means of the Seller’s factory. This inspection will not have the effect of limiting responsibilities of the Seller vis-à-vis the Buyer.
6.2. The Buyer shall have the right to refuse Products that do not comply with the order, specifications or prior indications.
Refusal of the Products shall be promptly notified to the Seller by registered letter, fax or confirmed electronic message. by registered letter. The Seller shall take back at his own expense Products delivered and refused within ten (10) working days from the date of receipt of the notification of refusal. After ten (10) days, the Buyer will return the Products to Seller at the expense of it.
The non-refusal of the Products can not be invoked to limit the guarantees defined in article 9 below.
7.1. The Buyer agrees to pay the only quantities ordered, subject to the stipulations of Article 5.
Any excess will be held at Seller’s risk and expense for a period not exceeding ten (10) days from the date of delivery date. If at the end of this period the Seller has not taken back the Products or sent instructions for shipping at its expense, the Buyer shall return Products in excess of the quantities ordered to the Seller to the risks and costs of the latter.
7.2. The Seller agrees that the Purchaser may decide, in its sole discretion, to purchase all or part of the excess as conditions stipulated on the purchase order and these General Conditions of Purchase.
8. TRANSFER OF RISKS AND PROPERTY
8.1. Unless otherwise agreed by the Parties, the transfer of ownership will be effective upon delivery of the Products in Purchaser’s premises or at any other place decided by the Parties.
8.1.1. Any retention of title clause of the Seller will be considered unwritten.
8.2. The transfer of risks will be done according to the Incoterm 2000 applicable to the order. If no Incoterm 2010 (ICC) is applicable, or in the absence of any indication, the transfer of risk will occur upon receipt of the products by the Buyer at the head office of the buyer ..
8.3. Goods of the Buyer’s property sent by the Buyer to the Seller for subcontracting operations,
remain the entire property of the Buyer during the duration of the operations. However, the seller is responsible for these merchandise. If the goods should be degraded, lost, … the value of the latter will be charged to the Seller, deducted from the amount to be paid to the Seller.
9.1. The Seller undertakes with respect to the Company to maintain the confidentiality of all information transmitted by the Purchaser in the context of the Order or to its employees (or of whom they have become acquainted by any other way), not to disclose it to any third party, in any form whatsoever, and not to use it in any way for any purpose other than the execution of the order.
9.2. The Seller undertakes to communicate to the Buyer only information (plans, technical data, features, etc.) that he owns or that he has obtained the authorization of disclosure from their owners.
10.1. Unless otherwise agreed by the Parties, the Seller warrants, for a period of thirty-six (36) months from the date of delivery, that the Products provided
(i) comply with all specifications, drawings, design plans and other data of the Seller (in any format) or provided by Buyer and approved by the Seller or jointly accepted by the Parties in writing, and with all the indications mentioned on the order form,
(ii) are carefully manufactured and free of any defect in design, workmanship or function,
(iii) are of fair and marketable quality. It is understood that the Seller is responsible for the supply of all the parts necessary for the proper functioning of the operations, including when this is not expressly required by the Buyer.
10.2. During the warranty period, the Purchaser shall notify the Seller in writing of any defect or malfunction of Products and the Seller shall without delay and at its expense either replace or repair the Products, or correct the defect or dysfunction.
The Seller shall grant a new warranty period of thirty-six (36) months after each replacement, repair
or correction made during the warranty period, from the day the replacement, repair or correction takes place been satisfactory and carried out successfully.
10.3. If the Seller does not fulfill its obligation to replace or repair the Products or correct the defect or malfunction, the Purchaser shall have the right, in its sole discretion, to (i) perform the replacement, repair or correction itself and at Seller’s sole expense, (ii) have the replacement, repair or correction a third party and at Seller’s sole expense or (iii) obtain from the Seller a full refund of the purchase price of the Product. defective or malfunctioning.
10.4. The Seller acknowledges that the warranties specified above are in addition to the legal warranties (including liability for defective products (Directive 85/374 / EEC) and those expressly granted by the Seller, other than those specified herein, as well as any other warranty, express or implied, applicable to the corresponding order.
These warranties will remain valid notwithstanding any inspection, test, acceptance or payment made by the Purchaser or any cancellation or agreement of the Buyer relating to orders.
11. INTELLECTUAL OR INDUSTRIAL PROPERTY
11.1. The Seller warrants that the supplied products do not infringe any patent, license, designs, right
author’s rights, masks or any other intellectual or industrial property right of a third party. Seller declares that holds all the rights of use, manufacture and sale of the Products and that the Buyer will have the right to use and resell the Products without restriction.
11.2. The Seller agrees to defend and guarantee the Buyer against any claim or action for infringement of intellectual property or industrial property belonging to a third party, to pay any costs incurred by the Buyer for his defense against any claim or action, including a reasonable amount covering attorney’s fees, and to indemnify the Purchaser for any damage, loss or damage suffered by the Purchaser arising directly or indirectly from this claim or action.
12. OWNERSHIP AND CONFIDENTIALITY OF INFORMATION
12.1. Any diagram, plan, data, equipment, or any other material and / or information provided by the Buyer, or provided by the Seller but paid by the Buyer as part of the price of the Products, will be considered as confidential information owned exclusively by the Buyer.
12.2. The Seller agrees to treat as strictly confidential any material and / or information belonging to the Buyer disclosed for the purposes hereof and to prevent any disclosure or disclosure of material or information to a third parties without the prior written consent of the Buyer.
12.3. Any written, oral communication or any publication concerning the order or its contents can not be carried out without the prior written consent of the Buyer.
13.1. The placing of orders by the Buyer, is it repeatedly does not create a flow of business between the parties nor does it require the placing of an equivalent or minimum number of orders for the future. Each order therefore gives only at the conclusion of a separate order contract for each order placed by the Buyer with the Seller.
13.2. The Buyer will have the right to cancel any order by registered letter with acknowledgment of receipt, without being not liable for any compensation or penalty to the Seller, (a) before receiving the acknowledgment of receipt of the order in accordance with clause 1.2 above or (b) if any of the following events occur:
(i) the Seller fails to deliver the Products (or any service) within the time specified in the order, and the delay lasts more than one week without Buyer’s prior approval;
(ii) the Seller is in default of its warranty obligations;
(iii) (the Seller differs in an exaggerated way from his consent to changes in the order, such as
defined in Article 5 above;
(iv) the Seller fails to fulfill any of its obligations under these General Purchase Conditions, or any contract between the Parties whose order is subject, without remedying it within ten (10) days of receipt a written notification from the Buyer informing him of the breach;
(v) in the event of the opening of a reorganization or liquidation procedure against the Seller;
(vi) an event of force majeure, as defined in section 14 below, causing a delay in delivery of more than three (3) months.
13.3. In addition, subject to the provisions of clause 12.2.1 below and, unless otherwise agreed by the Parties,
the Buyer reserves the right to terminate at any time all or part of the order by registered letter with acknowledgment of receipt without prior justification. Upon receipt of the termination of the order, the Seller shall stop any work undertaken in connection with this order, issue no further orders, make no commitment supplies or services to perform the work, and make every effort to minimize the costs and losses of the termination.
In the case of termination in the absence of fault of the Seller, the Seller may claim compensation in the amount mutually agreed by the Parties, taking into account the date of termination, the work accomplished and the costs and expenses already incurred by the Seller under the canceled order as well as the sales possibilities of the Products other customers. In any event, the parties that the Seller can claim only compensation resulting in its the work done and the costs incurred, excluding the loss of profits and any consequential damages.
14. LIABILITY AND INSURANCE
14.1. The Seller shall be exclusively liable to the Buyer, and third parties, for any damage to property or other material damage, loss or damage resulting from the performance by the Seller, its employees, agents or subcontractors of Seller’s obligations under the order.
14.2. The Seller will take out any suitable insurance policy to cover the consequences of his liability which, according to the stipulations of Article 13.1 above, could be engaged vis-à-vis the Buyer and hereby agrees to defend and indemnify the Buyer against all damages and other consequences of Seller’s liability.
14.3. The Seller agrees to take out a “Civil Liability Company” insurance policy guaranteeing third parties including the Buyer against all bodily injury, material and immaterial.
15. FORCE MAJEURE
The Parties will not be held responsible for any delay or failure in the performance of their obligations resulting from any unforeseeable event or circumstance, irresistible and beyond their control, such as but not limited to accidents serious, facts of the Prince, earthquakes, fires, floods, riots, civil wars, wars (declared or not), government measures etc. The party in question will send a written notification stating the delay and the cause of the delay the other Party as soon as possible after becoming aware of the cause of the delay.
16. APPLICABLE LAW AND JURISDICTION
The applicable law is Belgian law. In the event of a dispute and in the absence of an amicable settlement, only the courts of judicial district of Tournai will be competent. The 1980 Vienna Convention on the International Sale of goods is not applicable.
17.1. Partial disability. If one or more of the stipulations hereof were, for whatever reason, invalid,
illegal or not applicable in any respect whatsoever, they shall be considered unwritten and the other stipulations present will not be affected.
17.2. Compliance with laws and regulations. Seller declares to know, and to respect in all respects, the laws, decrees and regulations issued by any local authority or other, as well as any rule or regulation issued by private organizations or relating to its activity in connection with the execution of the order. Seller will have to support all financial and administrative consequences incurred by the Buyer, in particular, as a result of the Seller’s non-compliance, its employees, subcontractors or suppliers, of the provisions of the laws, decrees, regulations and other texts mentioned above.
17.3. Tolerance. The Buyer’s tolerance of Seller’s breach of one of the General Conditions of Purchase
can not be extended to any subsequent breach. Buyer’s failure to enforce any of these conditions
will not in any way constitute a waiver of these conditions and shall not affect the Purchaser’s right to subsequently respect.
17.4. Outsourcing. The Seller shall not, without the prior written consent of the Buyer, subcontract, directly or indirectly, at any level, the execution of all or part of the order. Seller will have to defend and indemnify the Buyer against any claim by its own contractors and / or suppliers.
17.5. Assignment. The order may not be assigned without the prior written consent of the Buyer, with the exception of assignments any subsidiary, affiliate of either Party or legal entity arising from the merger of either Party or purchaser of the business of one of the Parties.
17.6. Independence Each Party remains independent of each other. Neither the seller nor any person or third party appointed by the Seller to execute the order, is not the employee, partner, agent, agent or legal representative of the Buyer. Nothing in the Order can be interpreted as creating an agency relationship between the Parties, creating a joint venture or allowing one Party to represent the other vis-à-vis third parties.