1. General Provisions

Definitions

In these General Terms and Conditions, the words listed below are capitalised.
In the plural form, these words shall have the same meaning as in the singular form.

• General Terms and Conditions:These general terms and conditions of sale and delivery of Xemex NV.
• Buyer:The (legal) person who has instructed the Supplier to deliver Products.
• Purchase Agreement:The confirmation of the Order sent by the Supplier, including all accompanying annexes and any additional agreements.
• Supplier:Xemex NV, with registered office at Metropoolstraat 11, 2900 Schoten, Belgium, registered with the Crossroads Bank for Enterprises under number 0458.522.364.
• Agreement:The agreement concluded between the Buyer and the Supplier concerning the sale and delivery of Products and/or services.
• Quotation:An offer including the applicable terms and conditions, including pricing.
• Order:An order request submitted by the Buyer based on the Quotation issued by the Supplier.
• Order Confirmation:The confirmation of the Order sent by the Supplier.
• Parties:The Supplier and the Buyer.
• Products:The products sold by the Supplier to the Buyer.

Article 1 – General Terms and Conditions

1. Part A of the General Terms and Conditions applies to all requests for quotations by the Buyer, Quotations, Orders and Agreements under which the Supplier supplies Products and/or services of whatever nature and under whatever name to the Buyer. If Part A conflicts with a specific section of the General Terms and Conditions, the relevant specific section shall prevail.

2. The General Terms and Conditions apply to all requests for quotations by the Buyer, Quotations, Orders and Agreements.

3. The applicability of the Buyer’s general terms and conditions is expressly rejected.

4. In the event of any conflict between the General Terms and Conditions and the Quotation and/or Order Confirmation, the Quotation and/or Order Confirmation shall prevail.

Article 2 – Quotation and Formation of the Agreement

1. An Agreement is concluded as follows. The Buyer submits a written request to the Supplier. Based on this request, the Supplier provides a Quotation. The Quotation is revocable, non-binding and valid for 30 days from the date thereof. The Buyer may accept the Quotation by placing an Order at orders@xemex.eu. After receipt of the Order, the Supplier shall send an acknowledgement of receipt. This acknowledgement does not constitute acceptance. If the Supplier wishes to enter into an Agreement, it shall send an Order Confirmation. The dispatch of the Order Confirmation constitutes acceptance and at that moment an Agreement is concluded between the Parties. If no Order Confirmation is sent, the delivery note or, failing that, the invoice shall serve as such confirmation. The Buyer guarantees the accuracy and completeness of the requirements, specifications and other data provided to the Supplier on which the Supplier bases its Quotation and Order Confirmation.

2. If the Supplier is requested to prepare a Quotation for the delivery of one or more Products or services and incurs external costs in doing so, it is entitled to charge such costs, as well as the time spent, to the (prospective) Buyer at its usual rates.

3. An Order, once placed, is irrevocable and may not be amended without the prior written consent of the Supplier.

Article 3 – Prices

1. Prices stated by the Supplier are exclusive of packaging, VAT, import and export duties and/or other government levies and/or taxes.

2. The Supplier has the right at all times to increase the agreed price. Such increase shall take effect upon notification to the Buyer and shall apply to Agreements concluded thereafter.

3. If documents and/or information provided by the Buyer are incomplete and/or incorrect and this results in higher expenses for the Supplier, the Supplier is entitled to adjust the prices accordingly.

Article 4 – Payment

1. The Supplier is entitled to require advance payment and to invoice in instalments.

2. Payment must be made within the strict term of 15 days from the invoice date. The Buyer may not invoke set-off, discount or suspension. Upon expiry of the payment term, the Buyer shall automatically be in default without notice of default being required and shall owe statutory commercial interest in accordance with the Act of 2 August 2002 on combating late payment, from the due date until full payment. In the event of late payment, the Supplier may, after informing the Buyer in writing, suspend performance and adjust delivery periods accordingly.

3. All extrajudicial and judicial costs incurred once the Buyer is in default shall be borne by the Buyer. These costs shall be calculated based on the normal rates charged by third parties engaged by the Supplier, plus their costs.

4. Payments shall first be applied to claims for which the Supplier cannot invoke retention of title, then to costs, then to interest, and finally to the principal amount (starting with the oldest).

5. Complaints regarding invoices must be submitted in writing and in detail within ten days of dispatch, failing which the Buyer’s right to contest the invoice lapses.

6. Complaints regarding Products or services do not suspend the Buyer’s payment obligation.

Article 5 – Delivery

1. The Supplier may deliver in instalments.

2. Agreed delivery terms are approximate and not strict deadlines. In case of late delivery, the Buyer must give written notice of default granting a reasonable period for performance.

3. Unless otherwise agreed, Belgian officially recognised public holidays are excluded from delivery periods.

4. The Supplier may reasonably extend delivery periods if required information is not provided in time or in case of obstacles beyond its control, including but not limited to epidemics, labour disputes, strikes, accidents, late deliveries by subcontractors, governmental acts or omissions. The Parties shall in good faith agree on a reasonable amendment to the Agreement.

Article 6 – Security

1. The Supplier is entitled at all times to require the Buyer to provide (additional) security. If the Buyer fails to provide the requested security by the specified date, the Supplier may exercise the rights set out in Article 8.

Article 7 – Liability

1. By way of derogation from Articles 6.3 §1 and 6§2 of the Belgian Civil Code, the Buyer may not bring any non-contractual claim against the Supplier or against (an auxiliary person of) an auxiliary person of the Supplier, including but not limited to its directors, employees and independent contractors. The Buyer may only bring a contractual claim against the Supplier itself.
2. The Supplier’s liability, on whatever legal basis, is limited to compensation for direct damage only. Direct damage shall exclusively mean damage to the relevant Product itself. Any other liability of the Supplier for any other costs or damages, including consequential damage such as indirect damage, loss of profit, loss of savings, loss of goodwill, business interruption, non-material damage, reputational damage, environmental damage, claims from customers of the Buyer, or damage related to materials or software prescribed by the Supplier, is excluded.
3. In no event shall total compensation for direct damage exceed the invoice value (excluding VAT) of the Product or service giving rise to the liability, per event, whereby a series of related events shall be considered a single event.
4. If the limitation of liability does not hold in court, the Supplier’s liability shall be limited to the amount paid out under its insurance policy in the relevant case.
5. The Supplier shall not be liable for damage arising after the Buyer has processed, modified or resold the Products.
6. The Supplier shall not be liable for damage caused by damage to or destruction of the packaging.
7. No liability shall exist if:
   1. the Products have been modified, repaired or maintained by parties other than the Supplier or a third party designated by the Supplier;
   2. storage, use or processing is contrary to instructions provided by or on behalf of the Supplier;
   3. the Products have not been used, handled, installed or maintained in accordance with instructions or have been used negligently;
   4. the Products have been used for purposes other than those intended, including use in combination with non-Supplier products;
   5. the Products have been used in a manner not reasonably foreseeable by the Supplier and this influenced the occurrence of the damage.
8. The exclusions and limitations do not apply in case of wilful misconduct or gross negligence by the Supplier or its senior management.
9. The Buyer must notify any alleged shortcoming in writing within one week of discovery, failing which all related claims lapse.
10. Unless performance is permanently impossible, liability only arises after written notice of default granting a reasonable cure period.
11. Without prejudice to shorter statutory periods, any claim lapses 12 months after delivery.
12. The Buyer indemnifies the Supplier against third-party claims related to the Agreement or use of the Products.

Article 8 – Termination, Suspension and Dissolution

1. If the Buyer fails to fulfil any obligation, the Supplier may terminate, dissolve or suspend the Agreement and any other pending agreements. All amounts due become immediately payable. These rights also apply in case of bankruptcy, liquidation, takeover or loss of legal capacity of the Buyer.
2. Dissolution has no retroactive effect (ex tunc) but only operates for the future (ex nunc).

Article 9 – Force Majeure

1. A failure shall not be attributable if caused by force majeure, including strikes, illness, supplier default, traffic disruptions, natural disasters, war, shortages, power failures, internet outages, security incidents, data corruption, government measures or other circumstances beyond reasonable control (“Force Majeure”).
2. The Supplier shall notify the Buyer in writing of the Force Majeure event and indicate which obligations are affected.
3. The Supplier is relieved from performance during the Force Majeure period.
4. If Force Majeure continues for 60 consecutive working days, the Supplier may terminate the Agreement without liability.

Article 10 – Confidentiality

1. The Buyer shall keep confidential all drawings, designs, calculations, software and documentation received (“Confidential Information”). Such information may not be copied or disclosed except for performance of the Agreement.
2. This obligation does not apply if the information:
   1. is publicly available without breach;
   2. was lawfully obtained from a third party;
   3. is released from confidentiality by the Supplier.
3. Disclosure is permitted if required by law or court order, provided the Supplier is informed in advance where permitted.
4. In case of breach, the Buyer owes an immediately payable penalty of €25,000 per breach plus €1,000 per day, without prejudice to the Supplier’s right to full damages.

Article 11 – Assignment of Rights and Obligations

1. The Supplier may assign its rights and obligations under the Agreement to third parties.
2. The Buyer may not assign its rights or obligations without prior written consent.

Article 12 – Language

1. All communication shall take place in Dutch and/or English.
2. Technical documentation shall be provided in Dutch and/or English.

Article 13 – Notices

1. Written notices include communication by email.

Article 14 – Governing Law and Disputes

1. Belgian law applies. The Vienna Sales Convention (CISG) is excluded.
2. Disputes shall be submitted to the competent court of the Enterprise Court of Antwerp, division Antwerp. If the Buyer is established outside the EU, UK, Norway, Switzerland or Iceland, disputes shall be settled by arbitration under the CEPANI Rules in Antwerp, Belgium, in English, by one or three arbitrators depending on the financial interest.

Article 15 – Miscellaneous

1. The Supplier may unilaterally amend these General Terms and Conditions.
2. Amendments apply to existing Agreements one month after written notification. The Buyer may object in writing before entry into force and may terminate within one month, observing a two-month notice period.
3. Deviations are valid only if agreed in writing.

II. SPECIAL PROVISIONS – PURCHASE

Article 16 – Advice

1. Any advice provided is non-binding and indicative. The Buyer remains responsible for assessing suitability and verifying accuracy before implementation.

Article 17 – Delivery

1. Delivery takes place Carriage Paid To (Incoterms 2020).
2. The Buyer must immediately accept delivery. Failure allows dissolution and storage at Buyer’s risk and expense.

Article 18 – Inspection and Complaints

1. The Buyer must inspect Products immediately and report visible defects within 7 days.
2. Hidden defects must be reported within 7 days after discovery.
3. Products must be thoroughly inspected before processing.
4. Failure to complain in time results in loss of rights.
5. Unfounded complaints may be charged to the Buyer.
6. Returned Products require prior approval.
7. Minor deviations do not qualify as defects.
8. Defects in part of the delivery only affect that part.
9. The Buyer must mitigate damage.

Article 19 – Warranty

1. The Supplier warrants functionality for 24 months after delivery. Replaced or repaired parts carry a 6-month warranty.
2. Complaint deadlines remain applicable.
3. In case of valid warranty defects, Article 20 applies.
4. Warranty excludes improper use, installation, maintenance or unauthorised modification.
5. Instructions must be followed.
6. Warranty lapses in case of payment default.

Article 20 – Remedies

1. In case of defect, the Supplier may choose between:
   1. supplementary delivery;
   2. repair;
   3. replacement;
   4. credit note refund;
   5. price reduction.
2. Additional costs beyond replacement delivery are borne by the Buyer.
3. These remedies are exclusive.
4. No remedy applies if the Buyer fails to cooperate.
5. Rights lapse in case of improper handling or non-compliance.
6. The burden of proof lies with the Buyer.

Article 21 – Transfer of Risk

1. Risk transfers according to the agreed Incoterm.

Article 22 – Retention of Title

1. All deliveries remain property of the Supplier until full payment of all claims.
2. The Buyer may not use the Products as security.
3. Resale in the normal course of business is permitted unless default occurs.
4. The Buyer must inform the Supplier of third-party claims or seizure.

Article 23 – Traceability

1. Products are assigned a unique identification managed by the Supplier.
2. Per production batch the following are recorded:
   1. Supplier;
   2. Batch number;
   3. Batch date;
   4. Batch size;
   5. Release date.

Article 24 – Intellectual Property

1. The Supplier has not verified possible third-party IP rights and is not liable in that respect.
2. No license is granted under any intellectual property right. The Buyer assumes all risk of infringement resulting from use of the Products.