These general terms and conditions (“Terms”) are applicable to any tender, offer, invoice or agreements concluded between Proliver and its customer (the “Customer”). Deviations to these Terms are valid only if they are agreed in writing beforehand between the parties. In the event of inconsistency between these Terms and any special or separate written agreement with the Customer, the provisions of the written agreement prevail. For the rest, the provisions of these Terms apply. Unless explicitly agreed otherwise in writing between the parties, the Customer’s own general (purchase) terms and conditions are explicitly excluded.
2 Orders - order confirmation
All Proliver tenders, offers and contract proposals are without obligation and do not bind it as such. An agreement is formed between Proliver and Customer only with a written order confirmation signed by an authorised representative of Proliver, the signing of a written agreement, or by delivery and invoicing of the products. Changes by the Customer to orders it placed are binding on Proliver only if Proliver confirms its agreement to these changes in writing. If no written confirmation is given, the Customer remains bound by the initial agreement between the parties.
Orders are invoiced at the prices and conditions as stated in the order confirmation. Unless otherwise agreed in writing, all prices are exclusive of VAT and all other possible government levied taxes or duties payable by the Customer. If, after conclusion of the agreement, one or more price factors would increase (due among others and without limitation to additional duties or taxes, a change in legislation, raw material and/or energy prices, wage and/or fuel costs, foreign exchange rates and/or a change in the production costs), Proliver shall be entitled to pass on these increases to the Customer. Any type of discount or price reduction that would be granted to the Customer by Proliver is valid only if expressly confirmed in writing by Proliver via a credit note.
4 Delivery and delivery periods
Unless otherwise expressly agreed, each delivery takes place Ex Works (Industrielaan 15a – B-2250 Olen (Belgium)) (Incoterms® 2010). The Customer is obliged to take delivery of the products ordered on the proposed delivery dates. If the products are not accepted by the Customer at the time of delivery, Proliver is entitled to store the goods on behalf of and at the risk and expense of the Customer. This precautionary measure does not suspend the Customer’s payment obligation. If Proliver makes partial deliveries, the Customer must pay for this partial delivery, without awaiting full delivery of the order before making payment. The delivery periods specified by Proliver are indicative and not binding on the part of Proliver. Delay in the delivery of products (of any kind) may never give rise to any damage compensation, fine, suspension or termination of the agreement by the Customer. If pursuant to the provisions of Article 2 the Customer would make changes to the order and these changes are accepted by Proliver, the initially specified indicative delivery period will expire.
5 Invoices and payments
Unless otherwise agreed in writing or if otherwise stated on the invoice, all invoices are always payable within thirty (30) days after the invoice date. In the case of dispute of an invoice, the Customer must protest the invoice by registered letter addressed to Proliver within eight (8) days after receipt of the invoice. No disputes concerning the invoice will be accepted after this period. In the case of total or partial non-payment by the Customer within the aforementioned period of thirty (30) days, Proliver shall automatically and without prior notice be entitled to interest at the rate of 10% per annum on the amount of the outstanding claim. This interest will be calculated per month, with each month started being considered a full month. In the case of non-payment by the Customer within the aforementioned period, the Customer will also owe flat rate damage compensation of 10% of the principal with a minimum of EUR 500, without prejudice to the right of Proliver to claim reimbursement of actual costs and damages if these would be higher. All payments made by the Customer shall first be deducted from the aforementioned damage compensation and other costs, then the interest due, and finally the principal. If the Customer neglects to pay several invoices, a payment, subject to the provisions of the preceding sentence, will first be deducted from the oldest invoice, then the second oldest invoice, etc. In the case of non-payment of an invoice by the due date, any claims against the Customer not yet due and payable shall automatically and without prior notice become due and payable, and Proliver may demand payment prior to each subsequent delivery of products. Any form of setoff by the Customer of possible claims against Proliver with claims of Proliver against the Customer is explicitly excluded. Proliver on other hand always has the right to deduct claims it has against the Customer from any claims the Customer might have against Proliver.
6.1. The Customer must inspect the products within five (5) calendar days after receipt and subject them to the necessary tests with respect to volume, weight, type, composition, reliability and other potential characteristics as specified in the relevant product specification. Any (visible or hidden) defects or non-conformities that might emerge from this inspection must be reported by the Customer to Proliver in writing within this period of five (5) calendar days with a detailed description of the defects. After this period of five (5) calendar days, complaints concerning elements that should have been tested during this inspection will no longer be accepted. Hidden defects which could not have been discovered during the aforementioned inspection must be notified by the Customer in writing to Proliver within five (5) calendar days after discovery and in any event before the expiry of the expected shelf life of the products as indicated in the product specification. Furthermore, complaints concerning hidden defects are only valid and will only be examined on the condition that the Customer has not yet put the products sold into use. Moreover, complaints do not suspend the Customer’s payment obligation.
6.2 Without prejudice to Article 6.1 and the deadlines contain therein, legal claims related to or arising from complaints submitted on time concerning the products delivered must be brought within a period of three (3) months after discovery of the defect.
6.3. The Customer will make available to Proliver all unused, non-mixed and unprocessed products in respect of which it has made a complaint to Proliver in a suitable location, i.e. in compliance with all laws and industry standards. Proliver will have free access to the location where those products are located.
6.4. If it is necessary to take samples, this will be done by a qualified expert chosen by Proliver. The samples taken will be sealed in the name of both parties and will constitute conclusive proof for both parties with regard to the composition, quality and condition of the goods at the time the samples were taken.
6.5. Inspection of the samples will be outsourced to Eurofins or another qualified and independent institute chosen by Proliver. Any costs associated with or arising from the taking of samples and their inspection shall be borne by the Customer. 6.6. Unless expressly agreed otherwise in writing, Proliver shall not be deemed to have knowledge or to take account of any specific application that the Customer might make of the purchased products, and Proliver therefore cannot be held liable for this. The Customer is solely responsible for how it uses the products and/or the purpose for which it uses these products. Proliver is also not liable for any damage resulting from the use of the products purchased in combination with other products or substances.
6.7. Notwithstanding any other mandatory statutory provisions, the warranty of Proliver for non-compliant products consists only of crediting (part of) the invoice or, at the option of Proliver, replacement of the products in question. Any form of damage compensation in application of the warranty is expressly excluded.
7 Sale or use outside the EU
7.1 For deliveries of products intended for sale or use outside Belgium, the Customer undertakes to ensure, at its own expense, that the products will be in accordance with the laws and regulations of the destination country. Furthermore, the Customer undertakes to ensure conformity of the products with the applicable local laws and to inform Proliver concerning all information relating to such laws and regulations to which the products must comply in the destination country.
7.2 If the sale or use of the products is subject to authorisations and/or product approvals of any governmental authority in the destination country, the Customer, at its own expense, will take all useful and necessary actions to obtain these authorisations and/or product approvals.
7.3 The Customer undertakes to compensate Proliver for, and indemnify it against, any claims and/or damages that Proliver suffers due to the failure to comply with the guarantees and obligations of the Customer contained in this Article 7.
Without prejudice to the other provisions of these Terms, Proliver (including its appointees, representatives and/or employees) is only liable for damages caused due to the failure to comply with its contractual obligations, if and to the extent that this damage was caused by its serious or wilful fault, fraud or deception. Proliver is not liable for any other faults. Proliver can in no case be held liable for damage caused by misuse or illegal use of a product by the Customer. The liability of Proliver is always limited to (i) the invoice value of the order of the Customer, at least for that part of the order to which the liability relates, or (ii) if covered by Proliver’s liability insurance, the amount covered by that liability insurance. Proliver is only liable for direct damage and cannot be held liable for consequential damages, including but not limited to indirect loss, lost profits, lost savings, or damage to third parties.
9 Retention of title
Ownership of all products supplied by Proliver only transfers at the moment of full payment of the invoice by the Customer. All delivered and not-fully-paid products remain the property of Proliver. As long as title to the products has not been transferred, the Customer is forbidden from selling or processing the products, or establishing any security interest on them to the benefit of third parties. If the Customer submits an application pursuant to the Belgian Continuity of Enterprises Act (or foreign equivalent), is declared bankrupt, is put into liquidation or dissolution, or in any other circumstance in which the confidence of Proliver in the creditworthiness of the Customer is undermined, Proliver shall be entitled, without prior notice, to immediately take back products to which the retention of title applies and to rescind the relevant agreements with immediate effect, without prejudice to the right to claim damage compensation from the Customer.
Proliver has the right to terminate the agreement with the Customer at any time, with immediate effect, without judicial authorisation, without preliminary notice of default and without payment of any damage compensation, in the following cases: (i) if the Customer, despite a written notice of default in which a period of at least seven (7) calendar days is observed, remains in default with respect to the (timely) fulfilment of one or more obligations resulting from the agreement; (ii) in the case of suspension of payments or (application for) bankruptcy; (iii) in the case of a judicial reorganisation by the Customer within the meaning of the Belgian Act of 31 January 2009 (where applicable subject to compliance with Article 35 of this Act) or similar foreign proceedings; (iv) in the case of liquidation or discontinuation of the activities of the Customer; (v) if (a part of) the assets of the Customer are seized; or (vi) any other circumstance that might cause Proliver to no longer reasonably expect that the agreement can be implemented. In the case of dissolution pursuant to this Article, the Customer undertakes to compensate Proliver for all costs and damages suffered, and all claims of Proliver against the Customer become immediately due and payable.
11 Force majeure
If Proliver is unable to meet its obligations under the agreement or unable to do so in a timely manner due to a cause outside its control, its obligations will be suspended until such time as Proliver is again able to meet its obligations, without this giving the Customer any right to damage compensation or dissolution of the agreement. Without intending to be exhaustive, the following in any case are considered to be cases of force majeure: depletion of stocks, delays in or failure of delivery to Proliver by suppliers, destruction of products due to accidents, equipment breakdown, strike or lock-out, fire, riot, war, epidemic, flood, high absenteeism, disruption of electricity, computers, internet or telecommunications, decisions or interventions by the government (including the denial or cancellation of a permit or license), fuel shortages and errors or delays due to third parties. Proliver is not required to prove the lack of responsibility for and unpredictable nature of the circumstance that constitutes force majeure.
The Customer undertakes on first demand of Proliver to recall from the market any (possibly) defective products delivered, within a period to be specified by Proliver, and to cooperate fully with Proliver in the context of a recall in consultation with Proliver. The Customer undertakes not to initiate or disseminate a recall, destruction or press messages of or related to products delivered by Proliver without the prior written consent of Proliver.
13.1 Proliver is entitled to demand a guarantee or security from the Customer at any time to ensure the proper implementation of the obligations of the Customer. If the Customer refuses to meet such a request from Proliver, Proliver reserves the right to terminate all agreements with the Customer with immediate effect, without this giving rise to any right to damage compensation in respect of the Customer.
13.2 If a (part of a) provision of these Terms would be invalid or unenforceable, this shall not affect the validity and enforceability of the other provisions of these Terms. In such a case, the invalid or unenforceable provision will be replaced with a legally valid and enforceable provision that fits as closely as possible the objective and the intent of the original provision.
14 Applicable law - competent courts
All disputes relating to the implementation, interpretation, termination of agreements that have been concluded between Proliver and the Customer, as well as any consequences thereof, are exclusively governed by Belgian law to the exclusion of application of the United Nations Convention on Contracts for the International Sale of Goods of 11 April 1980 (Vienna Sales Convention). All disputes between the parties regarding agreements that are subject to these Terms shall exclusively be settled by the competent court of the judicial district of Antwerp, division Turnhout.