Terms of sale

General Terms and Conditions Clem nv

1. General 
1.1. The present general terms and conditions, together with the content of the offers and/or order confirmations sent to the customer by Clem, govern the legal relationship between Clem nv, a company incorporated under Belgian law with registered office at B-8500 Kortrijk, Spinnerijkaai 39, and company number 0434.532.779 (hereafter “Clem”) and the customer. Deviations from these general terms and conditions are only possible in case of prior, express written agreement between Clem and the customer. 

1.2. By accepting an offer of Clem, by placing an order or by performing an agreement with Clem, the customer declares to have read and understood these general terms and conditions in their entirety, and irrevocably agrees with the content of these general terms and conditions and the application thereof to all legal relations with Clem. The customer hereby expressly and irrevocably waives any application of its own general (purchasing) terms and conditions, if applicable. 
2. Fees and offers 
2.1. The fees included in price lists, offers and agreements are always exclusive of VAT. Only the costs that have been expressly included in an offer or in an agreement accepted by Clem are included in the price. Unless expressly agreed otherwise in writing, the customer shall be liable to pay all charges or taxes payable with respect to the goods. 

2.2 Offers made by Clem are valid for a period of one month. Offers made by Clem are only a proposal by Clem and are not binding on Clem, even after acceptance by the customer. Only the acceptance by Clem shall give rise to an agreement. If an offer made by Clem results in an agreement, this agreement will replace all prior oral or written proposals. Any acceptance by the customer deviating from the offer made by Clem constitutes a rejection of the original offer and is considered a new offer that does not bind Clem. 
3. Invoicing and payment 
3.1. All Clem’s invoices are payable within thirty (30) days from the end of the month in which the invoice was sent. Payment must be made by transfer to the account indicated on the invoice and mentioning the specification indicated on the invoice. 

3.2. The customer is deemed to have unconditionally accepted the invoice if it did not protest the invoice within two (2) weeks from the date of the invoice. 

3.3. In case of complete or partial non-payment of the invoice by the due date specified in article 3.1 and without prior notice, a default interest of ten (10) percent per annum shall be payable on the outstanding amount as from the day following the due date until payment in full was received. If the period of default is shorter than one (1) year, this interest shall be calculated on a pro rata temporis basis. Furthermore, in the aforementioned situation, the customer shall immediately and without prior notice be liable to pay a fixed compensation of ten (10) percent of the outstanding amount with a minimum of one hundred and twenty-five (125) EUR, even if a period of grace was granted and notwithstanding the right for Clem to claim higher damages. 

3.4. At all times, Clem is entitled to offset any amount owed by Clem to the customer with amounts owed by the customer to Clem, in whatever form. 

3.5. If, at the request of the customer, the invoice was addressed to a third party, the customer shall remain jointly and severally liable to fulfil all obligations, notwithstanding the invoicing to a third party. Clem shall send a copy of the invoice at issue to the customer by ordinary mail. 
4. Delivery and property 
4.1. The delivery period specified in an agreement between Clem and the customer is merely indicative and is not binding on Clem. 

4.2. The customer      acknowledges that deliveries may deviate from the quantity ordered by less than ten (10) percent. In such a case, the customer waives any claim for non-conforming delivery. 

4.3. Ownership of the delivered goods is only transferred to the customer at the time of full payment of the price. However, following delivery of the goods, the customer shall bear any and all risks associated with the loss and/or destruction of and/or damage to the goods. 

The customer undertakes to keep possession of the goods in kind and not to make them immovable by destination or incorporation, not to mix the goods with other movably property and not to process, handle or manipulate the goods until payment of the invoice has been made in full.
4.4. The tools, dies and designs which are designed by Clem or which Clem helped design or build remain the exclusive property of Clem, even if these are charged to the customer. From the moment of full payment of the invoice, Clem shall save the aforementioned tools and models for three (3) years after the last delivery to the customer and Clem undertakes to exclusively use them for the customer during this period. Unless contrary notice by the customer, Clem shall be free to destroy the tools and models after three (3) years.

4.5. If Clem informs the customer that an ordered good can be collected at the premises of Clem, the customer undertakes to collect the goods as soon as possible and in any event within one month after the message of Clem.  As soon as Clem informs the customer about the possibility of collecting the goods, Clem has the right to invoice the goods. Collection of the goods is only possible after payment. In case the goods are not collected within one month after the message of Clem, Clem reserves the right to destroy the goods. At all times Clem is entitled to payment of the goods, even in case of non-collection within one month.  
5. Confidentiality 
5.1. All non-public financial, technical or commercial information provided by the customer by Clem is strictly confidential. The customer will not share such information with third parties without Clem’s prior written permission, unless this would be necessary for the proper performance of the agreement with Clem. 
6. Intellectual property rights 
6.1. If the goods are manufactured on the basis of drawings, plans or data developed by Clem, all intellectual property rights, including but not limited to copyrights, rights in databases, rights in software, design and model rights, inventor rights, patents, knowhow and trade secrets relating to these drawings, plans or data as well as the tools and models manufactured on the basis of these drawings, plans or data, shall be and shall remain the exclusive property of Clem, unless prior written agreement to the contrary. When purchasing the goods, the customer shall not benefit from any transfer of, license to or other right to the intellectual property rights of Clem. 

6.2. If the goods, models, tools or dies are manufactured on the basis of drawings, plans or data provided by the customer, the customer guarantees that these drawings, plans or data do not infringe the intellectual property rights of third parties. In the event of a claim by a third party on the grounds of alleged intellectual property rights to these drawings, plans or data or the tools and models manufactured on the basis of these drawings, plans or data, only the customer shall be responsible for the defence and shall be liable in case of infringement. 
7. Warranty and indemnity 
7.1. Clem guarantees that the goods are manufactured in accordance with the applicable standards in the sector and the rules of the trade. The customer acknowledges having been fully informed of the characteristics of the goods and declares that Clem has completely fulfilled its duty to provide information with respect to the goods. In case the goods are custom-made, the customer accepts that part of the raw materials will be used for testing, start-up of the manufacture and refinement of the production process. 

7.2. If the customer is of the opinion that the goods are not in conformity or have been visibly damaged, the customer must communicate this to Clem by registered letter, within a period of five (5) working days following the delivery of the goods concerned. If Clem has not received a written complaint after the expiry of this period, the customer shall be deemed to have accepted the delivered goods. 

The delivered goods may not be returned to Clem unless Clem has granted express written permission thereto. Such a permission shall imply no recognition whatsoever on the part of Clem. If deemed appropriate, Clem will replace the goods properly refused by the customer. In no case shall the customer be entitled to any damages extending beyond the possible replacement of the delivered goods.
7.3. If the customer is of the opinion that the delivered goods have been affected by hidden defects, the customer must communicate this to Clem by registered letter, within a period of seven (7) working days following the identification of these defects by the customer or following the day on which these defects should normally have been identified and in any case within a period of three (3) months following the delivery date of the goods concerned. 

Hidden defects are identified in a contradictory manner. If the delivered goods are affected by a hidden defect, Clem shall, at its discretion, either replace the delivered goods, or grant a price reduction, or Clem and the customer shall rescind the agreement by mutual consent, with repayment of the purchase price and return of the delivered goods. In no case shall the customer be entitled to any additional compensation.
7.4. The customer cannot claim any visible or hidden defects if the goods have been subjected to any form of processing, handling or manipulation over which Clem did not have full control, or if the defect in quality or capacity is the result of specific, abnormal or incorrect use. Neither can the customer rely on any variations in colour and/or size, which are inherent in the production process. 
8. Liability 
8.1. Subject to the express undertakings of Clem under these terms and conditions and the agreement between Clem and the customer, the liability of Clem is limited to the liability imposed by mandatory applicable law. In no event shall Clem be liable for indirect damage, including but not limited to loss of revenue, profit or any increase in the customer’s costs. 

8.2. Clem shall not be liable or responsible for damages to or loss of goods or materials which the client has put at the disposal of Clem as a model or aid for the manufacturing of the ordered goods.

8.3. Notwithstanding article 30.1, the maximum liability of Clem vis-à-vis the customer on any grounds whatsoever shall be limited to the value of the customer’s order. In any event, Clem cannot be held liable for an amount greater than 250.000 EUR. 
9. Force majeure 
9.1. In the event of force majeure affecting Clem, Clem’s obligations towards the customer shall be suspended for the period of force majeure. All causes that are beyond the reasonable control of Clem, including but not limited to fire, explosions, power failures, earthquakes, floods, very severe storms, strikes, embargoes, labour disputes, acts of civil or military authorities, (cyber)terrorism, acts or neglect of regulatory or government bodies shall be considered as force majeure. 
10. Suspension and termination 
10.1. In the event of non-performance (or inadequate performance) of one or more obligations by the customer or in the event the customer is or will be unable to meet its obligations towards Clem, Clem is entitled (i) to suspend performance of its own obligations towards the customer without prior notice, or (ii) to terminate the agreement in whole or in part, without any compensation being due to the customer and without prejudice to Clem’s right of setoff as referred to in article 3.4. 
11. Miscellaneous 
11.1. The failure of Clem to react or to expressly claim adequate performance in the event of non-performance or inadequate performance of one or more obligations by the customer, does not constitute a waiver by Clem of the right to refer to the non-performance, the inadequate performance and/or the non-performed obligation(s) at a later stage. 

11.2. Any possible nullity, invalidity and/or unenforceability of any provision of these general terms and conditions shall in no way compromise the validity and/or enforceability of the other provisions or of these general terms and conditions. Moreover, in the event of nullity, invalidity or unenforceability of any of the provisions of these general terms and conditions, Clem and the customer undertake to replace the provision at issue by a valid and enforceable provision having the same or substantially the same economic impact as the invalid provision. 
12. Applicable law and competence 
12.1. These general terms and conditions as well as the agreement between Clem and the customer are governed by the laws of Belgium, with the exclusion of the United Nations Convention on Contracts for the International Sale of Goods of April 11th 1980. 

12.2. All possible disputes arising in relation to these general terms and conditions and/or the goods shall be subjected to the exclusive jurisdiction of the courts of the judicial district of Kortrijk (Belgium).