from November 25th, 2022
1.1. These sales conditions (hereinafter referred to as “SC”) shall govern and apply to any contract LAMBIOTTE ET COMPAGNIE SA, hereinafter referred to as “LAMBIOTTE”, with registered offices located Avenue des Aubépines, 18, B-1180 Brussels, Belgium, shall conclude with any customer, irrespective of the place of destination of the products or services, in Belgium or abroad.
These SC are deemed to be essential part of the contract and their applicability shall remain a condition in terms of its conclusion.
The Conditions set out the entire agreement between LAMBIOTTE and the Client with regard to the rights and obligations of both LAMBIOTTE and the Client. Any other document (such as general terms and conditions of the Client, business documents, charters, etc.) shall therefore not apply. The Parties agree that there may only be a derogation to these SC, subject to prior written consent of LAMBIOTTE. Any reference to these SC in any
document issued by LAMBIOTTE shall make these SC applicable and enforceable.
The acceptance of orders by LAMBIOTTE or the issuance of an order confirmation to the Client, as well as the delivery of the products, shall entail Client’s irrevocable acceptance of these SC. Whenever LAMBIOTTE has expressly agreed to waive any rights arising out these SC, these shall remain applicable in addition.
The Client and LAMBIOTTE agree not to dispute the opposability of these SC in the event of litigation and to retain a printed version of these SC, to the extent necessary. Moreover, they agree not to challenge of the printed version of all their electronic communications, in the same manner and in the same conditions as the probative value of other documents which they could use on base of a printed version.
1.2. Quotations issued by LAMBIOTTE may not be considered as binding offer. The contract shall be deemed to have been concluded once LAMBIOTTE has accepted an order from the Client, subject to the payment to LAMBIOTTE of any down payment by the Client. The Client hereby authorizes LAMBIOTTE to suspend any obligation arising out these SC as long as the down payment has not been fully completed by the Client, in accordance with the specification set out in the related offer.
1.3. Orders which have been accepted by LAMBIOTTE may not be amended nor cancelled by the Client unless LAMBIOTTE has given its prior written consent.
2.- PRICES AND PAYMENT
2.1. All prices are detailed within LAMBIOTTE’s offer and the related order. The Client agrees that prices may be subject to variation between i) the date of the offer and the date of the issuance of the final order; and ii) the date of the order and the date of products dispatching as per agreed within the order. Client agrees that any amendment to the final order, such as a change of the loading date of the products within 5 business days ahead of the initial schedule or a change to the order within 72 hours prior to the loading, may be subject to fixed fee of Eur. 150.
2.2. Prices are in euros (EUR.-) or the agreed currency and are exclusive of all taxes, such as VAT, which shall be borne by the Client. All costs relative to bank drafts shall be borne by the Client.
2.3. All LAMBIOTTE invoices are payable in euros (EUR.-) or the agreed currency. Prices shall be charged to the Client at the time of acceptance of the order by LAMBIOTTE. Payment has to be made entirely at due date in accordance with the specific terms set out in LAMBIOTTE’s invoice; LAMBIOTTE and the Client agree that products manufacturing process may be subject to down-payment, as per detailed in LAMBIOTTE offer.
2.4. Any costs of recovery (including legal fees) shall be borne by the Client exclusively. Any complaints related to an invoice must be made in writing and within 8 days from the date of invoice. Complaints shall always specify the date and the number of the invoice being contested.
Any invoices that remain unpaid:
a. – shall automatically be subject to interests of 12 % per annum on the amount of the invoice. Moreover,
fixed contractual damages of 15 % with a minimum of Eur. 500 shall be due.
b.- LAMBIOTTE reserves the right to suspend the further its obligations, including the delivery of any pending
3.- PRODUCTS SPECIFICATION, SALES CONDITIONS AND DELIVERY
3.1. All LAMBIOTTE’s delivery lead times are indicative and non-binding. LAMBIOTTE shall provide its best endeavors to estimate delivery time properly. LAMBIOTTE may however not be held responsible and shall not be liable in case of failure or delay by delivery of the products or services; no refund may be claimed by the Client for any delay, which was caused due to reasons beyond the control of LAMBIOTTE, such as force majeure or decision of LAMBIOTTE’s supplier or partner.
3.2. Products provided by LAMBIOTTE are deemed to be conform to the specifications set out in the product notice of LAMBIOTTE such as technical data sheet (“TDS”) and material safety data sheet (“MSDS”), which are deemed to be irrevocably accepted by the Client as part of these SC.
3.3. Client agrees that any technical advice with regard to practical application, if any, is provided to the best of LAMBIOTTE’s knowledge based on its research work and experience. It may not be considered as indication of particular purpose with regard to the use and the related LAMBIOTTE liability under clause 7.1. All particulars and information in respect of the suitability and application of LAMBIOTTE’s products or services do not relieve the Client from his own liability related to the use of products according to clause 5 and, consequently, to carry out his own investigations and tests.
3.4. Claims arising out of material defects, deliveries and quantities which are incorrect, so far as these can be noticed by a reasonable examination, must be made in writing immediately and in the event of apparent defects not later than five (5) days upon delivery of the remated products. No claim shall be allowed after the products have been processed in any manner.
Should any defect being confirmed by LAMBIOTTE prior to its use, the related products shall be replaced or, if agreed by LAMBIOTTE and the Client, subject to a price rebate on the current or the next order.
3.5. All claim related to the products shall be subject to the liability clauses set out under clause 7.
4. – OWNERSHIP TRANSFER – RISKS
4.1. The Client expressly recognizes that LAMBIOTTE shall retain full ownership of any products the Client has ordered, even if it has been delivered, as long as the related invoice has not been entirely paid. The Client hereby agrees to return any product to LAMBIOTTE at LAMBIOTTE’s first request and authorizes LAMBIOTTE to collect any product that is in mint condition from the Client or from the end customer if any. The Client shall inform his end customer of the existence of the present reservation of title clause and shall provide cooperation and all required information from LAMBIOTTE on this regard.
4.2. All risks arising out- or in connection with the products ordered by the Client shall be transferred to the Client at the time of delivery. Unless otherwise agreed, all deliveries, as well as the related transport cost and the transfer of risk shall apply with reference to the agreed incoterms, as set out in LAMBIOTTE offer. Claims arising out of damage in transit must be lodged by the Buyer directly to the deliverer within the specified period. For sake of clarity, the Client agrees to cover by- and maintain a proper insurance in connection with transport of all deliveries and any related risk to the extent i) such risk is not covered by reference to the Incoterms agreed in LAMBIOTTE’s order; or ii) transport is carried out or otherwise arranged by the Client.
4.3. General Commercial Terms such as EXW, CIF, DPU, DAP, CPT, FCA etc. shall be interpreted in accordance with the Incoterms 2020.
5.- WARRANTY AND RESTRICTION OF USE
5.1. Client represents, warrants and agrees that (a) it has full power, licenses and permits, and authority to accept these Conditions and to perform the obligations hereunder; (b) it shall use products according to the law, these Conditions, in the course and for business purposes only; and (c) information and material provided by- or to LAMBIOTTE are true, accurate, current and complete.
Client further represents, warrants and agrees that it shall/are:
– not use products in a way which may cause prejudice to LAMBIOTTE or third parties ;
– not engage in any other unlawful activities (including without limitation those which would constitute a criminal offence, give rise to civil liability, …) or encourage or abet any unlawful activities; comply with all relevant applicable laws, such as Regulation (eu) 2021/821 of the European Parliament and of the Council of 20 may 2021 setting up a union regime for the control of exports, brokering, technical assistance, transit and transfer of dual-use items or Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13 january 1993.
– not engage in any activities that would otherwise create any liability for LAMBIOTTE.
– use products at its own risk and under its own liability, in accordance with LAMBIOTTE notice or instruction, such as technical data sheet (“TDS”) and material safety data sheet (“MSDS”).
5.2. The Client shall refrain from reselling any LAMBIOTTE products. Any derogation to this provision shall require the prior and written consent from LAMBIOTTE who may, if applicable, attach a number of conditions to this permission; however, said permission shall not in any way alter the purchase-sales relationship between the Client and LAMBIOTTE. LAMBIOTTE shall be entitled to refuse any further sales to the Client if the present provision is violated or if the agreement concluded between the parties is not adhered to, without having to issue the client with notice or pay any form of compensation.
6.- FORCE MAJEURE
Events such as a strike, pandemic, fire, technical malfunctions, availability of raw materials and energies, cyberhacking, failure of a third party or any internal organisational problems at LAMBIOTTE or any similar events shall be construed as events of force majeure if these events cause a delay in the performance of the obligations incumbent on LAMBIOTTE for more than thirty (30) days. In that case, LAMBIOTTE shall be relieved from all its obligations and released from all liability, without having to prove that the event which led to its inability to perform the contract could not have been foreseen or was beyond its control. In that event LAMBIOTTE shall not be liable for damages.
The agreement shall be automatically terminated, without prior notice, if the Client is pronounced bankrupt, becomes insolvent or goes into liquidation; in that case LAMBIOTTE shall not be liable for damages.
7.1. To the maximum extent permitted by law, the products provided by LAMBIOTTE are provided “as is”, “as available” and “with all faults”, and LAMBIOTTE hereby expressly disclaims any and all warranties, express or implied, including but not limited to, any warranties of condition, quality, durability, performance, accuracy, reliability, merchantability or fitness for a particular purpose. all such warranties, representations, conditions, and undertakings are hereby excluded.
The client recognizes having been fully informed about the intended use of the products and undertakes to use the products according to the “MSDS” received from LAMBIOTTE. LAMBIOTTE shall not be responsible in case of physical injury and damage to goods, that have been sustained by a third party and caused by an abnormal, inappropriate or non-intended use of the products sold by LAMBIOTTE. The client shall hold LAMBIOTTE harmless for any consequences of all condemnations that shall be ruled against LAMBIOTTE related to one of the above-mentioned use.
7.3. In no event shall LAMBIOTTE or the client be liable to the other party or any other person or party for any lost revenues, lost profits or any indirect, special, incidental, punitive, exemplary or consequential damages of any nature, whether based on warranty, contract, statute, regulation, tort (including but not limited to negligence), willful misconduct or any other legal theory, even if such party has been advised of the possibility of such damages, that may arise under this agreement or otherwise with respect to this agreement.
7.4. Notwithstanding any of the foregoing provisions, the liability of Lambiotte with respect to all claims arising
from the use of Lambiotte products shall be limited to the amount of the related order which has been paid to
Lambiotte by the client. all claims arising from the sale or the use of Lambiotte products has to be filed by the
client within one (1) month from the date the cause of action arose.
8.- INTELLECTUAL PROPERTY RIGHTS
Logos and related icons, the content of LAMBIOTTE websites (www.lambiotte.com) are subject to exclusive LAMBIOTTE trademarks and copyright. The unauthorized communication, reproducing, copying, modification, use or publication of these material and related intellectual property rights is strictly prohibited without prior written consent of LAMBIOTTE.
The Client hereby expressly agrees that LAMBIOTTE shall retain full ownership of all its intellectual property rights on its products and trademarks. The Client shall moreover refrain from any actions that may interfere with the validity, the protection and/or enjoyment of the intellectual property rights owned by LAMBIOTTE.
9.- CONFIDENTIAL INFORMATION
9.1.– For purposes of this provision, “Confidential Information” is defined as any information related to products or services of LAMBIOTTE such as contracts, financial information, business plans, customer lists, market studies, communication strategies and all other proprietary information or trade secrets of the disclosing party, whether in written, oral or other format. Confidential Information does not include information, knowledge or factual data which (i) is in the possession of the receiving party prior to the time of disclosure and the receiving party promptly provides documentation establishing such fact with reasonable certainty; or (ii) becomes part of the public knowledge or literature other than by reason of any action or inaction of the receiving party; or (iii) was rightfully disclosed to the receiving party without restriction and without breach of this Agreement by a third party having the right to disclose the same; or (iv) is approved for release by the disclosing party, in writing.
9.2.– Non-Disclosure and Limited Use. In consideration of providing the Confidential Information to the receiving party, the receiving party hereby covenants and agrees (i) to not use any Confidential Information for the receiving party’s own use or for any purpose other than for the performance of the present contract ; (ii) to not disclose any Confidential Information to any person or entity except as approved in advance in writing by the disclosing party; (iii) to take all reasonable measures to protect the secrecy of and avoid disclosure or use of the Confidential Information in order to prevent it from falling into the public domain or the possession of persons other than those persons authorized hereunder to have any such information, which measures shall at a minimum include the highest degree of care that the receiving party utilizes to protect its own information of a similar nature but no less than a reasonable degree of care; (iv) to ensure the terms of this provision are binding on all of the receiving party’s directors, officers, employees, agents and representatives; (v) to notify the disclosing party in writing of any misuse or misappropriation of the Confidential Information which may come to the receiving party’s attention; and (vi) not to willfully interfere with the relationship between the disclosing party and its employees.
10.- APPLICABLE LAW – JURISDICTION
These SC are governed by Belgian law, save the United Nations Convention on Contracts for the International Sale of Goods of April 11, 1980, which is explicitly excluded. Any disputes regarding the conclusion, interpretation or performance of these SC shall be exclusively submitted to the Business Court of Brussels (French division). The Client hereby irrevocably agrees not to contest the territorial jurisdiction of these courts or the law governing the present contract.
11.1 Capacity. Each Party warrants that it has full capacity to enter and agree with these SC and to be bound by all its provisions. It guarantees also, if applicable, that the representative or each Party have sufficient powers to sign and enter into an agreement based on these SC, and therefore act and commit on behalf of the relevant Party.
11.2 Good faith. The Parties shall cooperate in good faith and proactively as part of these agreed SC. They shall communicate to each other all relevant information for the proper performance of respective rights and obligations arising out these SC.
11.3 Electronic communications – Enforceability. Clients represents and agrees that, these SC and the contract arising out the Client consent on their related content, as per described in the consent process set out under Article 2 of these Conditions, are deemed to be formed and concluded in compliance with requirements of Art. XII. 15 and ss. of Belgian Economic Code, Art. 3.10 and 3.12 of EU Regulation nr.
910/2014 of European Parliament and EU Council of July 23rd 2014 and Art. 8.1 and 8.12 of Sect. 8 of Belgian
Additionally, LAMBIOTTE and Client agree enforceability and probative value of any email exchanged between them via messaging software, provided that this mail is comprised of a series of signs intelligible and accessible for future reference, as per required by the aforementioned legal provisions. The Parties waive to discuss the probative value of an email which does not implement an advanced electronic signature (advanced) within the meaning of art. 26 of EU Regulation nr. 910/2014 of European Parliament and EU Council of July 23rd 2014.
11.4 No waiver. The failure of either Party to avail itself of a provision of these Conditions or the failure of the other Party to comply with any of the obligations hereunder may not be construed as a waiver of such a right or obligation.
11.5 Reference. LAMBIOTTE shall be allowed to communicate publicly about the existence of the contract arising out the consent of Client related to these Conditions, and to mention therefore the name of the Client and/or his logo in its Sponsor list and/or on LAMBIOTTE’s website.
11.6 Effect of invalid or unenforceable provisions. If any provision of these Conditions is held by any court or other competent authority to be invalid or unenforceable in whole or in part, these Conditions shall remain and continue to be valid as to its other provisions and the remainder of the affected provision, unless it can be concluded from the circumstances that, in the absence of the provision found to be null and void, the Parties would not have concluded this contract. The Parties shall use all reasonable efforts to replace all provisions found to be null and void by provisions that are valid under the applicable law and come closest.