1. "Buyer" means the entity to which iSee2 is providing Products or Services under the Terms and Conditions.
"Products" means the products iSee2 has agreed to supply the Buyer with under the Terms and Conditions.
"iSee2" means the Public Limited Liability company iSee2, Belgium, 9831 Deurle,
Lindenpark 28, with VAT BE 0876.348.478, providing Products or performing Services under the Terms and Conditions.
"Services" means the services iSee2 has agreed to perform for the Buyer under the Terms and Conditions.
"Terms and Conditions" means these Terms and Conditions for Sale of Products and Services. "Registered Letter of Complaint" means a registered letter stating the invoice date, the invoice number and/or the number of the order confirmation, with a precise identification of the material and/or the services performed, and a detailed account of the complaint, non-conformity and/or defect;
2. These Terms and Conditions are applicable to the sale of any Products or Services, to the exclusion of all other conditions. Any conflicting conditions or any conditions of the Buyer differing from the Terms and Conditions shall not be recognized, save to the extent and express written acceptation by iSee2.
The mere fact of placing an order or of accepting a quotation shall imply the unconditional acceptance of the Terms and Conditions and the technical manual of the Products. The Terms and Conditions shall be able to be modified by iSee2 at any time and without prior notice, the said modifications then becoming applicable to all subsequent orders.
Any failure or repeated failure by iSee2 to enforce any right may only be regarded as tolerating a certain situation and will not lead to the forfeiture of rights.
4. The sale of Products is a sale "ex-works" (as defined by the INCOTERMS® 2010 and amendments thereof) Therefore, unless otherwise stated delivery shall be deemed to take place and the risk in the Products shall pass to the Buyer at the moment the Products are placed at the disposal of the Buyer at the stipulated place of delivery, If such place is not stipulated, then delivery shall be deemed to take place at the warehouse in Belgium, 9880 Aalter, Groendreef 35.
The delivery periods are only indicative toward iSee2 and not essential. If the delivery period is exceeded by iSee2, iSee2 and the Buyer must agree a reasonable additional period. iSee2 is entitled to perform in various parts. Neither partial deliveries/performance nor exceeding periods (original or additional periods) can give cause for termination or compensation to the Buyer. Collection by the Buyer takes place at his expense and risk and at the time and place indicated by iSee2. If the Buyer does not take delivery of the Products at the time agreed or, if no time is agreed, within a reasonable period, iSee2 has the right, at the Buyer’s risk and expense to hold the Products and/or to transport the Products to the Buyer.
6.1 All invoices are payable within thirty (30) days from the invoice date. In case of first order by the Buyer or at any time iSee2 reasonably determines that Buyer’s financial condition or payment history justify a payment in advance, iSee2 shall be entitled to require full or partial payment in advance. The entry of the invoice in the outgoing books of iSee2 serves as a rebuttable presumption of posting and receipt.
6.2 In the event of late/incomplete payment of an invoice, the sum invoiced shall automatically and without any prior notice be increased by interest for late payment at the rate of 1% per month, applicable on the first day of late/incomplete payment. The interest shall be due from the date when payment for the Products or Services became due to the date of actual and full payment. Furthermore, late/incomplete payment of an invoice: (1) brings also the invoicing of a fixed compensation of 10% of the sum invoiced, with a flat rate minimum of 250 euro, without any need of prior notification needing to be sent to the Buyer, (2) the Buyer is obliged to pay all judicial and extra judicial collection costs, (3) in addition, all other invoices issued to the Buyer that have not yet fallen due will become immediately due and payable, (4) and iSee2 will be entitled to recover all material, suspend the further performance of and/or terminate the relevant and/or other agreements with the Buyer. This may all be done without any prior notice of default or judicial intervention. This clause shall not in any event exclude the possible payment of real damages.
In case of partial payment, this takes place subject to the reservation of all rights of iSee2 and such payment will be allocated as follows: (1) collection costs, (2) compensation, (3) interest and (4) principal amounts.
In accordance with the Belgian Financial Securities Act of 15 December 2004, iSee2 and the Buyer will
offset and settle all currently existing and future debts in relation to each other automatically and by operation of law. This means that only the largest debt on balance remains in the permanent relationship between them. This set-off will be enforceable in each case against the official liquidator and general body of other creditors, who may therefore not oppose this set-off.
6.3 The Buyer shall never be entitled to withhold, or to offset on the basis of a complaint put forward by him, all or a part of the sums due from him. Complaints relating to invoices must be submitted within eight days of the invoice date by means of a registered letter stating the invoice date, invoice number and/or the number of the order, with a precise identification and batch number of the material and/or services performed, and a detailed account of the complaint, non-conformity and/or defect.
6.4 In the event that the order is cancelled at the request of the Buyer or the execution is suspended prematurely due to the Buyer, the invoicing shall be carried out according to the stage of progress of the order. This amount shall be increased with an additional conventional compensation payment of 30% on the sum invoiced for cancellation or suspension of contract.
7. The Products shall remain the exclusive property of iSee2 until the invoice, interest for late payments and any other payments due by the Buyer are paid up in full. As long as the price and other payments shall not have been paid in full, the Buyer undertakes not to alter, modify or otherwise amend the labeling on the packaging and Products and in general not modify the means of identification of the Products. The Buyer undertakes further to (1) take out necessary insurance policies, on demand by iSee2, (2) identify and store the Products delivered under this contract in such a manner that they
cannot be confused with any other similar Products sourced from other suppliers, (3) return the relevant goods at its own expense and risk to iSee2 within 24 hours, which will result in the automatic termination of the special agreement. The Buyer shall inter-alia keep an inventory of the Products and store them apart from other products. If the retention of title is infringed, iSee2 will automatically have a pledge on the released selling price and the Buyer will be liable to pay fixed compensation of 35% of the total invoice amount.
8.1 On receipt of the Products, the Buyer shall immediately carry out a first inspection. The Buyer must report any immediately verifiable variations by mail to iSee2 without delay, and confirm these by means of a registered letter of complaint, failing which he will be deemed to have accepted the Products and/or Services. The Buyer must carry out a thorough inspection of the services and/or Products within 48 hours. Putting into use, processing and reselling serve as final delivery and acceptance. The Buyer will in any case lose the right to rely on any non-conformity or defect if he does not inform iSee2 thereof by means of registered letter of complaint within 24 hours of discovering when he ought to have discovered this non-conformity or defect, which may not be later than six months after the date of final invoice concerning the Products or Services in question.
In case of timely and correct notice, iSee2 shall at its own option and discretion: (1) replace all or part of the Products, or (2) pass a credit note for the value of the defective portion to be deducted from the price of the order confirmation. Full or partial replacement cannot give cause for any compensation or cancellation of the order confirmation. Complaints do not release the Buyer from its obligation to pay. The Buyer is bound to compensate all costs arising from unfounded complaints.
The Products in question must be made available to iSee2 for examination upon first request.
8.2 iSee2 guarantees the Buyer only in extent to which iSee2 itself is guaranteed for the supplies.
8.3 If the Buyer uses part of the Products or has them dispatched by third parties by post or for distribution to a distribution company, it shall be considered that the Buyer has accepted the entire run.
8.4. iSee2 is not liable under any circumstances for: (1) indirect damages, (2) damage that exceeds the invoice amount and/or business operations civil liability policy taken out by iSee2, (3) damage during carriage/transport, (4) incorrect use or storage of the Products (5), damage caused by the Buyer and/or third parties, (6) damages as a result of inaccurate/incomplete information, and/or (7) the failure of the Buyer to comply with statutory and/or other obligations. iSee2 is not responsible for performing tests, requesting permits/licenses and/or assessing whether documents (of any nature whatsoever) comply with statutory and/or other obligations. The Buyer may not return items, have work carried out by third parties or proceed with a covering purchase under any circumstances. iSee2 reserves the right to determine defects and their cause. The Buyer must fully indemnify for all damage, including legal costs, which arise as a result of its defence in relation to the aforementioned obligations to indemnify.
iSee2 is in no case liable in case of force majeure or hardship. In this case, iSee2 may at its own option and discretion, without any prior notice of default or judicial intervention, and without any right of recourse against it: (1) replace goods/components with a functional equivalent, (2) suspend the performance of its obligations, (3) terminate the order confirmation and/or (4) invite the Buyer to renegotiate the terms and conditions of performance. If the Buyer does not participate in good faith herein, iSee2 may request the district court to determine new contractual terms and conditions and/or to order the Buyer to pay compensation. Force majeure and hardship are defined in the broadest possible way, and include: unavailability/shortage of raw and other materials, special weather conditions, strike, wars, illness or accidents, communication and IT failures, government measures, transport and/or travel obstacles, import and export barriers, breakdowns, traffic jams, etc.
9. The scope of the performance owed under this contract shall solely be determined by the confirmation of the order by iSee2. Details regarding characteristics of the Products shall serve as an illustration and shall not be binding, except as otherwise expressly agreed in writing. Likewise public statements, sales talk or advertising shall not be regarded as a quality description of the Products stipulated under the contract. Slight variations in details regarding dimensions, weight, nature and quality may occur.
All documents/information of any nature that are provided to the Buyer must be treated in confidence, will remain the property of iSee2 and may not be disclosed to third parties or used directly or indirectly for purposes other than those for which they are intended. These obligations will remain in force at least until the relevant information becomes publicly known through no fault of the Buyer.
If a breach of the aforementioned paragraph is ascertained, the Buyer shall pay iSee2, for each breach, a flat-rate penalty of EUR 25,000 (twenty-five thousand euros), without prejudice to the right of iSee2 to claim higher compensation if the loss or damage actually incurred exceeds the amount of this flat- rate penalty.
10. In case the Buyer should be declared bankrupt, become insolvent, go into liquidation or become subject to any proceedings for liquidation or to any other similar proceedings iSee2 is entitled to terminate the execution of existing contracts by registered letter and iSee2 shall be entitled to require full payment immediately.
11. All commercial transactions between iSee2 and the Buyer are governed by (in hierarchically decreasing order): (1) the written order confirmation from iSee2 (2) the offer from iSee2 (3) these Terms and Conditions (4) Articles 4-88 of the Vienna Sales Convention (5) the Unidroit Principles (6) Belgian law to the exclusion of Articles 1-3 and 89-101 of the Vienna Sales Convention.
Aalter shall be regarded as the place of performance for deliveries and payments for all rights and obligations arising from transactions with iSee2.
Should a provision in these Terms and Conditions be invalid, for whatever reason, this shall not affect the validity of the other provisions. The parties to the contract shall be obliged to replace the invalid provision by one, which is nearest to the legal and economic purpose of the invalid provision.
The Buyer agrees that any dispute arising in connection with the validity, performance or interpretation of these Terms and Conditions shall be subject to the exclusive jurisdiction of the Courts of Ghent, without prejudice to iSee2’s right to bring the matter before the Court of the Buyer’s principal place of business, registered office or domicile.