Terms and Conditions of Sale
NOTICE: These terms and conditions are the commercial terms of purchase of products (“Products”) from Greenhard b.v. and its subsidiaries and affiliates (“Seller”) and apply to all purchases of Products from Seller by any buyer (“Buyer”) with notice of these terms, however gained, including the use of Seller’s website. Provisions below that apply only to certain types of goods (e.g., provisions relating to printed orders) only apply to the extent, if any, such provisions are applicable to Products sold to Buyer. Throughout this instrument, the use of the term “include,” however conjugated, shall be without limitation; “person” shall include any individual, corporation, LLC, partnership or other entity. The use of the term “goods” shall include Products if appropriate to the context.
1. ACCEPTANCE AND COMPLETE AGREEMENT - Any order submitted by Buyer is binding only when accepted in writing at an appropriate office of Seller. The terms and conditions of sale are only those stated below, which, together with the writing or writings that identify the Products, quantity, price and other particulars as agreed by the parties, shall constitute the complete agreement (“Agreement”) between the parties and may not be altered or modified except in writing duly executed by authorized officers of each party. The parties agree there are no agreements between the parties, oral or written, with respect to the Products (including any made or implied from past or other current dealings) except as expressed herein. No terms and conditions stated in or attached to Buyer’s communications to Seller, including Buyer’s purchase orders the terms of which are hereby rejected, are applicable to these terms and conditions (“Terms”) in any way and are not to be considered Buyer’s exceptions to the provisions of these Terms. Trade custom, trade usage and past performance are superseded by these Terms and shall not be used to interpret these Terms. Seller will not accept orders submitted without shipping instructions. Buyer may not assign any rights or obligations under the parties’ Agreement without Seller’s prior written consent which consent may be withheld for any reason or no reason.
2. SHIPPING - Shipping dates are estimates only and are not guaranteed. Seller will use reasonable efforts to make shipments as scheduled and may make partial shipments. All claims for shortages or error in shipment must be made, in writing, within ten (10) days after the Buyer receives the Products. If Buyer does not take delivery of the Products or does not take delivery of them in time, it shall be in default without the need for notice of default. In such case, Seller shall be entitled to store the Products at the Buyer’s expense and risk or sell them to a third party. Buyer shall continue to owe the purchase price plus the applicable interest and costs, less where appropriate the net proceeds of any sale to a third party. Seller’s completion of any order shall always be subject to force majeure including any event, cause or circumstance that prevents or impedes production or delivery of Products, such as acts of God, the public enemy, fires, floods, severe weather, breakdowns, raw material shortages, labour disputes from whatever cause arising and whether or not the demands of the employees involved are reasonable and within Seller's power to concede, commercial frustration, delays caused by governments (including government priorities, preferences or allocations), delays or failures of suppliers in furnishing materials and services on time and upon reasonable terms, and any other causes beyond Seller’s reasonable control. If the force majeure event prevents production or delivery more than six (6) weeks, either party may terminate the Agreement as it relates to the affected Products upon written notice to the other party. If a freight forwarder or other shipper is late in delivering the Products to Buyer, through no fault of Seller, Seller shall not be liable for such delay or obligated to airfreight or express ship any additional Products. Unless otherwise agreed to by Seller in writing, any airfreight or express shipment shall be at Buyer’s expense. If Seller's supply of the Product shall be insufficient to meet all requirements, Seller shall have the right, at its option and without liability, to apportion its available sales supply among its customers, including its affiliated divisions and companies, in such a manner as Seller believes equitable. In addition, Seller shall have the right to terminate its obligations hereunder on reasonable prior written notice to Buyer (except as to obligations in respect of Product already delivered to Buyer) in the event Seller should withdraw from the business of producing or selling the Products.
3. INSPECTION - All Products must be inspected immediately upon receipt. If any damage is discovered, such damage must be reported on the transportation documents. In the event that Buyer is of the opinion that the delivered Products are unsatisfactory, Buyer shall make a claim in writing to Seller within ten (10) calendar days after the date of receipt of the Products. If Buyer finds defects that were not obvious at the time of delivery (i.e., hidden defects), Buyer shall notify Seller in writing within fifteen (15) days after such detection describing in detail the nature and extent of the defect. After finding a defect, Buyer shall immediately cease the use, processing and/or installation of the affected Products, and shall do and refrain from doing all that is reasonably possible to prevent (further) damage. The burden of proving that a defect is hidden shall rest with Buyer. If Buyer fails to submit a claim within this period, it will be deemed to have accepted the Products in the condition in which they have been delivered. Buyer shall fully cooperate in any investigation of a complaint regarding defective Products, inter alia, by giving Seller the opportunity to investigate the circumstances surrounding the use, processing or installation of such Products. Buyer may not return Products forming the subject of a compliant without Seller’s prior consent. The reasonable costs of the return shall be borne by Seller only if a complaint has been lodged on time, properly and with justification. If no comments or notations were made with regard to the packaging at the time of acceptance of the Products, the bill of lading or the delivery note, then, subject to evidence to the contrary, the Products shall be deemed to have been in proper condition upon delivery.
4. EXPORTATION - If the Products ordered are to be exported, the quoted shipping dates are subject to receipt of all export documents and authorizations. Regardless of ultimate destination, the prices quoted are based on packing for domestic shipment unless otherwise stated in writing. Buyer agrees to provide Seller in writing with the ultimate destination and identity of the end-user prior to shipment.
5. PRICES - Prices quoted, unless otherwise stated by Seller, in writing, are Ex Works and do not include sales, use, value added, excise or similar taxes or duties, nor freight. Buyer shall pay all taxes directly if the law permits or will reimburse Seller if Seller is required to pay them. Buyer will provide tax exemption certificates or evidence of tax payment on request. Buyer will also pay freight charges or reimburse Seller for such charges. Prices are subject to change upon each shipment of Products. Unless otherwise specified, orders will be billed at prices in effect at the date of shipment. Any temporary surcharge imposed by Seller’s suppliers will be passed on to Buyer during whatever period of time such surcharge might be in effect. Price increases for components purchased by Seller on Buyer’s behalf for inclusion in finished Products shall be passed on to Buyer without advance notice and due immediately without regard to Buyer’s payment terms or standard payment terms. Buyer shall be fully responsible to pay or to reimburse Seller for carrier detention charges incurred as a result of delays caused or allowed by Buyer. If prices include a freight component, prices shall be subject to adjustments effective immediately without notice in the event of a subsequent change in freight rates or the imposition of a fuel or other surcharge. In the case of international sales, unless otherwise agreed, Buyer shall be fully responsible: (i) to provide Seller prior to shipment and in writing, the ultimate destination and identity of the end-user; (ii) to pay all duties, taxes and other charges imposed by any government on Products or on the purchase, exportation or importation of Products; and (iii) for compliance with applicable legal requirements for exportation and importation of Products.
6. PAYMENT - Unless otherwise agreed in writing, payment is due upon Buyer’s receipt of Seller’s invoice regardless of Buyer’s sales relationship with any downstream customer. In the event credit has not been established, Seller reserves the right to require payment, or the issuance of an irrevocable letter of credit, in advance of production or shipment. Any amounts not paid when due shall automatically bear interest at the rate of 1% per month (12% per annum) without prior notice. Seller shall not be bound to extend credit: (i) prior to Buyer’s compliance with credit requirements, including Seller’s approval of a signed credit application or (ii) because it has previously done so for Buyer or others similarly situated. If Buyer’s purchases of Products are made through a broker, distributor, wholesaler, filler or other intermediary (“Intermediary”), references herein to “Buyer” shall include such Intermediary as necessary to the context and Buyer agrees that Seller shall be entitled to make credit decisions concerning sales to the Intermediary in Seller’s discretion and may refuse to make sales on credit as it determines in its discretion. Seller, to the extent necessary to protect its interest in receiving payment for Products, shall be a third-party beneficiary of any purchase contract between the Intermediary and Buyer. If Seller makes sales of Products to the Intermediary as an accommodation to Buyer, Buyer shall remain liable to Seller for the cost of Products sold to the extent that the Intermediary fails or refuses to pay Seller for such Products; Buyer waives all suretyship defences. In the event that Buyer renders payment to Seller and/or its agent in a manner purported by Buyer to serve as payment in full of an invoice, Seller or its agent’s acceptance of such payment (i) shall not act as an accord and satisfaction and (ii) shall be without prejudice to Seller’s right to pursue additional payment of such invoice. Buyer shall not have the right of set off unless so agreed in writing by Seller. Buyer agrees to pay Seller's attorney's fees and expenses and other collection costs in the event collection or other enforcement efforts become necessary or appropriate in Seller’s discretion.
7. NO SET-OFF - Seller may recover for each delivery as a separate transaction, without reference to any other delivery. If Buyer is in default with respect to any of the terms or conditions of any contract with Seller, or if Seller deems itself insecure for any reason, Seller may, at its option, and without notice, demand security, stop Products in transit, or suspend or cancel further deliveries until such default or insecurity is remedied (in which event, if Seller so elects, the contract period will be deemed extended by a time equal to that during which deliveries are so suspended), or, without prejudice to any other legal remedy, Seller may decline further performance.
8. SOLVENCY - Each order placed by Buyer will be deemed a representation that it is solvent and able to pay for the Products ordered. If Buyer fails to make payments when due or if bankruptcy or insolvency proceedings are instituted by or against Buyer, or if Buyer makes an assignment for the benefit of creditors, Buyer will be deemed to be in default and Seller will have the right to terminate its obligations as set forth in section 9 of these Terms, but such termination will not affect Buyer’s obligation to pay for Products delivered and works in progress.
9. CANCELLATION - Orders placed with and accepted by Seller may not be cancelled by Buyer except upon Seller’s written consent prior to shipment and Buyer’s acceptance of Seller’s cancellation charges, which shall protect Seller against all costs and losses. Orders requiring special packaging, including without limitation, packaging required for exportation, as well as orders of custom-built or “made to order” Products, may not be cancelled and shipment of such Products may not be postponed. Nonetheless, if Seller agrees to delay or otherwise cancel the shipment of such Products and, in its sole discretion, determines that such Products may be restocked or converted, then Buyer agrees to pay a restocking charge of twenty percent (20%) of the original sales price. Seller reserves the right to cancel any sale hereunder without liability to Buyer (except for refund of monies already paid) if the manufacture or sale of the Products is or becomes technically or economically impractical.
10. RETURNS – Buyer may only return Products to Seller subject to the following conditions: (i) no Products may be returned without prior written approval of Seller; (ii) made-to-order, “special" or “unique” Products may not be returned, in any quantity; (iii) Buyer’s request to return Products must be made in writing no later than six months from date of shipment by Seller to Buyer at a restocking charge of 15% of the original sales price; (iv) returns of Products requested within 12 months after purchase may be accepted, at Seller’s option, at a restocking charge of 20% of the original sales price; (v) all Products must be in original factory packaging, undamaged, unused, unopened and in saleable condition with a remaining shelf life of at least six months; (vi) all freight expenses for returned merchandise are the sole responsibility of Buyer. Risk of loss shall pass to Seller only after Seller has accepted receipt of the returned Products.
11. MANUFACTURE - Seller reserves the right to discontinue the manufacture of, or change or modify the design and/or construction of the Products, without incurring any obligation to Buyer.
12. TITLE AND RISK OF LOSS - All sales are Ex Works unless otherwise agreed. The Products will remain Seller's property until full payment of the price has been received. The risk of loss of or damage to the Products shall pass to Buyer when the Products are made available at Seller’s facility, and Seller is not responsible for damage or loss in transit, regardless of whether or not Buyer may have the right to reject or revoke acceptance of Products. Seller can arrange for in-transit insurance at Buyer’s expense, but will not do so without Buyer’s written instructions. Any installation or application of the Products shall always occur on behalf of, and for the benefit of, Seller. If the Products are being processed, combined or mixed by Buyer with goods of Buyer or third parties, Seller shall acquire joint title, pro rata, to that part of the goods that represents the invoiced value of Seller’s Products (including VAT, if applicable) in relation to the total val ue of the other goods that have been processed, combined or mixed. If Buyer combines or mixes Seller’s Products with the main goods of a third party in return for compensation, Buyer hereby assigns to Seller Buyer’s right to compensation from such third party. If the right to compensation exceeds the invoiced value of Seller’s Products (including VAT, if applicable), the assignment shall occur pro rata. Buyer may, in the ordinary course of its business and only if Buyer is not in arrears with any payments due to Seller, resell any goods that are subject to Seller’s retention of title. If, upon such resale, Buyer does not receive the full purchase price in advance or upon delivery of such goods, it shall agree with its customer concerning retention of title in accordance with these Terms. Buyer hereby assigns to Seller all of its claims arising from such resale and its rights arising from the agreement for retention of title on a pro rata basis in relation to the invoiced value of Seller’s Products (including VAT, if applicable). If so requested by Seller, Buyer shall advise its customer of such assignment of rights and shall provide Seller with any information and documents necessary to enforce Seller’s rights. Notwithstanding the foregoing, Buyer shall be entitled to collect payments from claims arising from any such resale to any third party only as long as Buyer properly satisfies its obligations to Seller. If Buyer is in breach of its Agreement with Seller, in particular in the case of delay with respect to any payment due, Seller may request return of the Products for which title has not yet passed, and may commercialize such Products. The proceeds of such commercialization shall be credited against the payments due, after deduction of reasonable costs for the commercialization. As long as Seller holds title to the Products, Buyer shall immediately inform Seller when the Products fall or are at risk of falling under any (bankruptcy) attachment, or if some other claim is made in respect of any part of the Products. If third parties take any action with regard to the goods to which Seller holds title, Buyer shall immediately inform such third parties that Seller holds title to these goods. Moreover, in any such case, Buyer shall inform Seller of the location of the goods and, if so desired by Seller, shall allow Seller access to buildings and/or areas in order for Seller to take possession of the goods. In the event that the security interests granted to Seller exceed by more than one hundred ten percent (110%) the value of Seller’s claims arising out of its business relationship with Buyer, Seller shall, upon written request, release any security interests in excess of such limitation.
13. CONFIDENTIALITY - Buyer agrees that all drawings and other technical material whether prepared by Seller or by third parties under contract to Seller and other non public information conveyed by Seller regarding Seller’s prices, costs, discounts, inventions, planned and existing products, including the Products (some of which may also be subject to Seller’s copyright, trademark, or patent rights), packaging, customers and distributors as well as information regarding Seller’s business or finances and production methods, know-how and concepts used by Seller that Seller provides to Buyer, contain data which embody trade secrets and confidential information and know-how of commercial value to Seller or third parties under contract to Seller or both. Buyer agrees: (a) to keep such information confidential; (b) that it will not disclose such information to any other person or corporate division; (c) will not use such information except in connection with the Products supplied hereunder; and (d) will not sell, lease, loan or permit any other person or corporate division to use such information for any purpose, without Seller’s prior written consent. Nothing herein shall restrict the use of information available to the general public. Seller shall be entitled to all legal and equitable rights and remedies available at law and in equity to protect its information, trademarks, trade secrets and intellectual property of all kinds.
14. WARRANTY; LIMITATION OF LIABILITY - All Products are sold on the condition that Buyer will examine and test samples prior to the initial purchase to determine whether the Products: (i) meet Buyer's requirements and (ii) comply with all compatibility and use requirements. Once Seller has made samples available, Buyer’s order for Products acts as confirmation of such examination and testing. Products are warranted to: (i) be substantially free from defects in material and workmanship when sold subject to all time limitations and (ii) comply with Seller’s published specifications within stated tolerances, but it shall be Buyer’s responsibility to assure that such specifications and tolerances will fulfil Buyer’s requirements regardless of whether Seller has notice of such requirements. Other than this warranty and the patent infringement warranty contained under Patent Indemnity below, Seller makes NO OTHER REPRESENTATION, GUARANTEE OR WARRANTY OF ANY KIND OR NATURE, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR OF FITNESS FOR ANY PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS. This warranty shall apply only to Products when paid for and properly installed, used and maintained. The warranty period is one year from the date of shipment. No warranty is given for goods not manufactured by Seller, or for Products which have been subject to misuse, improper installation, corrosion, or which have been modified or subject to any processing (except by Seller). Seller must receive written notice of defects within the warranty period. Seller’s liability is limited solely to replacing any defective Product or, at Seller’s sole option, refunding to Buyer the purchase price allocable to the nonconforming Product.
Except for the president of Seller, no agent or representative of Seller is authorized to change this warranty or to give any other warranty, express or implied. Further, no such agent or representative is authorized to make any representations concerning the Product that are not subject to the exclusions and qualifications and to the limitations of liability expressed herein. Seller’s statements, publicity and advertising claims shall not constitute a warranty. Where Seller is requested to provide technical or other advice concerning Product suitability or application, such advice shall be given diligently and to the best of Seller’s knowledge, but without warranty. Unless expressly agreed otherwise in writing, such advice does not relieve Buyer from its duties to test the Products for suitability and to perform its own due diligence. The remedial obligations expressed in this article shall constitute Seller’s sole liability and Buyer’s exclusive remedy with respect to the Products, irrespective of Seller’s fault or negligence. Neither party shall be responsible or held liable to the other for punitive, indirect, incidental or consequential damages, including, liability for loss of use, loss of profits, or business interruption, however such damages may be caused, including fault or negligence of either party. In no event shall Seller’s liability exceed an amount equal to the sales price.
15. PATENT INDEMNITY - Seller warrants that the use or sale of the Product does not infringe the claim of any United States or European patent, extant as of the date of delivery, covering the Product itself, but does not warrant against infringement by reason of the use thereof in combination with other goods or material or in the operation of any process. If a Product furnished to Buyer becomes or, in Seller’s opinion, may become the subject of any claim, suit or proceeding for infringement of any patent covered by the preceding warranty, Seller may at its option and expense (i) obtain for Buyer the right to use, lease or sell the Product, (ii) replace the Product, (iii) modify the Product, or (iv) remove the Product and refund the purchase price paid by Buyer less a reasonable amount for use, damage or obsolescence. Seller’s total liability to Buyer will not, under any circumstances exceed the purchase price paid for the allegedly infringing Product.
16. INDEMNIFICATION - Buyer shall hold harmless and indemnify Seller from and against any expenses, claims or causes of action (including Seller’s attorney's fees and expenses) as a result of (i) death, bodily injury, personal injury or property damage arising out of Buyer’s marketing, advertising, sale, distribution or use of the Products (including any claims or causes of action based on items for which or with which the Products are used) except to the extent caused solely by Seller's gross negligence; (ii) Buyer’s violation of any applicable law or standard in the marketing, advertising, labelling (or improper or inadequate labelling), sale, distribution or use of the Products or the items with which or for which the Products are used; (iii) any alleged patent, trademark, trade dress, copyright, trade secret or other intellectual property infringement based on Buyer's samples, mock-ups or specifications; (iv) any illegal, false, misleading or deceptive information that Buyer instructs Seller to print on or otherwise apply to or use with the Products; and (v) any environmental pollution, contamination or damage (including, in addition to the above, fines and penalties to the extent allowed by law, clean-up and other remedial or containment costs and legal, technical or similar fees and expenses) arising out of such pollution, contamination or damage to the environment or natural resources occurring in connection with Buyer’s use of any Products regardless of cause, including Buyer’s or Seller’s negligence, strict liability, or other act or omission . Buyer warrants that custom Products ordered based on Buyer's samples, mock-ups or specifications do not infringe any trade dress, copyright, trade secret or other intellectual property rights of others or any letters patent granted by any country. Seller reserves the right (but shall have no duty) to discontinue deliveries of any Products, the manufacture, sale or use of which might: (i) infringe any trade dress, copyright, trade secret, patent or other intellectual property rights; or (ii) violate any foreign, federal, state or local law, regulation or order. Buyer shall not acquire any intellectual property rights with regard to the Products. Buyer is not permitted to alter or remove trademark or other distinguishing marks on the Products or the packaging, or to alter or copy the Products or any part thereof. Seller confirms that to the best of its knowledge at the time of delivery the Products do not infringe any intellectual property rights of third parties applicable in the Netherlands. In the event of claims by third parties with regard to an infringement of such rights, Seller may, if necessary, replace or alter the relevant Product, or the parties may dissolve the Agreement in whole or in part. Buyer shall immediately inform Seller of any claim by a third party regarding an infringement of intellectual property rights relating to the Products. In the event of such a claim and with the full cooperation of Buyer, Seller alone shall be entitled to present a defence, including on behalf of Buyer, or to take legal measures against such third party, or to agree a settlement with such third party. Buyer shall refrain from taking any measures insofar as such action can reasonably be demanded of it.
17. WAIVER - No failure to exercise and no delay in exercising on the part of Seller any right, power or privilege hereunder will operate as a waiver thereof nor will any single or partial exercise of any right, power or privilege hereunder preclude further exercise of the same right, power or privilege.
18. VALIDITY OF PROVISIONS - In the event any provision or any part or portion of any provision of these Terms shall be held to be invalid, void or otherwise unenforceable, such holding shall not affect the remaining part or portions of that provision, or any other provision hereof. All Agreements to which these Terms apply are governed exclusively by Belgian law, excluding its conflict of law principles. The application of the Vienna Sales Convention (CIGS) is expressly excluded, as is the application of all other international conventions and regulations where exclusion is permitted. Any disputes arising from or in connection with these Terms shall be brought exclusively before the courts of Turnhout, provided however that Seller shall always have the right to bring claims, simultaneously or otherwise, against Buyer before courts competent to adjudicate such claims at Buyer’s domicile.