Terms and conditions*
1. Applicability of the general sales and rental terms and conditions
a. Offers from, orders to and deliveries by ELSCOLAB SA (hereinafter referred to as "ELSCOLAB") to buyers or tenants (hereinafter referred to as "the Customer") shall be governed exclusively by these terms and conditions, subject to prior and written deviations. Any deviation from one or more of the provisions of these general terms and conditions shall not affect the validity of the remaining terms and conditions, which shall continue to apply in full. Any deviation from one or more of the provisions of these general terms and conditions shall only apply to one order, unless otherwise agreed.
b. Any reference by the Customer to his/her own general terms and conditions is hereby declared non-existent. Other terms and conditions are valid only if and insofar as ELSCOLAB has accepted them in advance and in writing.
2. Offer, agreement and prices
a. An order placed by the Customer is binding, even when placed by telephone. Unless otherwise stipulated in the order, ELSCOLAB may accept the same by no later than fourteen (14) days after receipt. Telephone orders will be executed in accordance with the notes made by ELSCOLAB and according to its interpretation of them.
b. An agreement with ELSCOLAB shall only be effected after ELSCOLAB has confirmed the order in writing, or if ELSCOLAB has delivered and/or invoiced the goods.
c. Unless otherwise stipulated, the price includes only the value of the goods per standard packaging unit, excluding transport and any other costs, levies and/or charges. All taxes and other costs, duties and/or charges, present and future, of any kind shall be borne by the Customer.
d. ELSCOLAB may change the terms and conditions during the calendar year. ELSCOLAB will inform the Customer of the changes. Discounts apply to one order only, unless otherwise agreed.
e. Illustrations, drawings, price lists, offers, dimensions, colours and other data included in catalogues are not binding.
f. Prices stated by ELSCOLAB on offers, in price lists and invoices are, unless otherwise stated, ex works in EURO (€), and exclusive of VAT.
3. Delivery and service period
a. Dates and periods specified by ELSCOLAB are indicative only, unless otherwise stipulated.
b. Under no circumstances can ELSCOLAB be held liable for delays in deliveries and service resulting from force majeure or extraneous cause. Force majeure is understood to include, for example (non-exhaustive): strike, war, lock-out, riot, mobilisation, epidemic, illness, fire, change in transport rates, customs tariffs, government measures in general, late delivery by the supplier, strike at the supplier, bankruptcy of the supplier, labour shortage, fuel shortage, destruction of machinery, etc.
c. In case of force majeure or extraneous cause, the delivery or service period shall be extended by the duration of the delay. ELSCOLAB will notify the Customer of such delays. The Customer may nevertheless declare the agreement to be dissolved if the delay lasts for more than three (3) months and insofar as the Customer has given ELSCOLAB prior notice of default, by registered letter, whereby the Customer shall allow ELSCOLAB a reasonable additional period. In such an event, however, the Customer may not claim any compensation, regardless of the nature and extent of both direct and indirect damage incurred.
d. If the delay in the delivery or service period is attributable to ELSCOLAB, the Customer may only dissolve the agreement in accordance with applicable law. The Customer shall give ELSCOLAB prior notice of default, submitted by registered letter. In such event, the Customer is entitled to compensation in accordance with common law, up to a maximum of 10% of the order or repair.
e. ELSCOLAB is entitled to make partial deliveries and the customer is obliged to accept and pay for these partial deliveries.
f. ELSCOLAB is entitled to make changes to its products insofar as such changes are reasonable. ELSCOLAB is not obliged to make changes to products that have already been delivered to the Customer.
4. Transfer of risk
a. Unless otherwise agreed, the risk shall pass to the Customer as soon as the consignment is handed over to the (first) person who carries out the transport, or as soon as the consignment has left ELSCOLAB's warehouse for shipment to the Customer. In other words, the goods are transported at the Customer's risk. This article also applies if ELSCOLAB bears the transport costs.
b. The risk shall also pass to the Customer as soon as ELSCOLAB has given the Customer notice to take delivery.
5. Warranty and warranty obligation
a. The warranty period for all defects is twelve (12) months, except for pH electrodes, which can age even without being put into use and even during normal storage. The warranty period commences on the date of delivery to the Customer. After this period, all claims the Customer has against ELSCOLAB shall expire, except for those based on legal provisions of public order or compulsory law.
b. Visible defects, as well as non-conforming deliveries (including incomplete deliveries) shall be notified to ELSCOLAB by registered letter within three (3) working days following the delivery, accurately stating the complaint, failing which the delivery shall be considered conforming and the goods received as in perfect condition. This presumption shall also apply if the Customer has taken the goods into use or had them taken into use, sold, treated or processed, including before the expiry of the aforementioned period. Hidden defects must be reported immediately after their discovery, but at the latest within fourteen (14) days, under penalty of expiry.
c. Information about the product shall not constitute a warranty, unless otherwise stipulated. If the Customer has negotiated a special warranty with ELSCOLAB, the Customer must invoke this guarantee within the period stipulated in this guarantee and, failing this, within the periods stipulated in this article.
d. If all these terms and conditions are satisfied and the complaint is found to be justified, ELSCOLAB undertakes to replace the defective goods with new ones, in exchange for the return of the defective goods. Under no circumstances shall the Customer be entitled to any claims other than those listed above. The following are therefore excluded: price reductions and compensation (of any kind and for both direct and indirect or consequential damage).
6. Return of goods and cancellations
a. Returns of goods are only allowed with the prior and written consent of ELSCOLAB.
b. If the Customer cancels an order or refuses to take delivery of the goods ordered, a fixed and irreducible compensation of 30% of the price of the order or delivery shall be due - except in cases of force majeure - without prejudice to higher compensation if ELSCOLAB's actual damage exceeds this fixed compensation
a. Unless otherwise stipulated, and without prejudice to legal provisions of public order or compulsory law, ELSCOLAB cannot be held liable for:
- Accidental damage or damage due to force majeure;
- Damage caused by inappropriate and/or inexpert use;
- Damage caused by wear and tear;
- Damage caused by an error or negligence on the part of the Customer or any of his/her appointees, employees or agents.
- Damage caused by an error or negligence on the part of one of his/her own appointees, employees or agents.
b. The Customer undertakes to observe all safety regulations when using the goods and acknowledges being fully informed as to how to use the goods.
c. Any compensation that ELSCOLAB might be obliged to pay shall in no case exceed the price of the goods.
8. Retention of title, netting and other rights of ELSCOLAB
Until all amounts due to ELSCOLAB, regardless of their nature and cause, have been paid in time and in full (principal sum, any interest, damages clause and any legal costs) by the Customer:
- ELSCOLAB shall be entitled, even after concurrence, to have recourse to set-off between amounts that the parties would be due to each other, regardless of the reason and the cause, up to the smallest amount;
- The Customer is obliged to insure the goods against fire, explosion and water damage, as well as theft;
- The Customer is prohibited from pledging the goods, whether as part of a pledge on his/her business or otherwise, or encumbering them in any other way;
- The Customer hereby assigns to ELSCOLAB all claims it has against third parties as security for the payment of its invoices;
- The Customer shall notify ELSCOLAB, without delay and by registered letter, of any execution action taken by one or more of the Customer's creditors against the Customer in relation to the unpaid goods, under penalty of a compensation of EUR 1,000, without prejudice to higher compensation;
- ELSCOLAB is entitled, without notice to the Customer, to suspend the delivery of any other order, even if this order is part of another agreement;
- Once the due date has passed, and without prejudice to ELSCOLAB's right to demand payment of the invoices, ELSCOLAB shall be entitled to demand the dissolution of the agreement, as well as of all other agreements for which ELSCOLAB, in application of the previous paragraph, is entitled to suspend delivery. In the event of dissolution of the agreement at the Customer's expense, the latter shall owe a fixed and irreducible compensation of 30% of the price.
a. ELSCOLAB's invoices shall be payable at ELSCOLAB's registered office, unless otherwise stipulated, within thirty (30) days from the date of invoice.
b. ELSCOLAB shall be entitled to charge the Customer's payments first against the oldest outstanding debts (including interest and costs), regardless of whether the Customer wishes to charge his/her payment against other outstanding debts. ELSCOLAB shall furthermore be entitled to first charge payments to the Customer against interest, conventional damages and any other compensation owed by him/her to ELSCOLAB on account of other outstanding debts.
c. In the event of non-payment of one or more invoices on the due date, the Customer is legally and without notice of default:
- Liable to pay a default interest of 1% per started month, calculated from the due date;
- Liable to pay a fixed penalty of 15% of the invoiced price, with a minimum of EUR 75. This penalty does not cover the costs associated with the recovery itself;
- Liable to pay a reasonable compensation due for all relevant recovery costs incurred by ELSCOLAB as a result of the late payment. This compensation is conventionally estimated at the total of the following amounts: (1) for the EUR 0 to EUR 6,250 range: 15%; (2) for the EUR 6,251 to EUR 50,000 range: 10%; (3) for the EUR 50,001 to EUR 125,000 range: 7.5%; (4) for the range from EUR 125,001: 3%. These amounts are based on the normal recovery rates used by law firms.
d. Set-off by the Customer is excluded. The Customer also cannot exercise any right of retention over the goods. Delegation is also excluded.
10. Applicable law and competent court
a. The agreement between ELSCOLAB and the Customer shall be governed by Belgian law.
b. The place of performance of the agreement between ELSCOLAB and the Customer shall be at the registered office of ELSCOLAB.
c. Any dispute relating to the validity, conclusion, interpretation, execution or termination of the agreement between ELSCOLAB and the Customer shall fall under the exclusive jurisdiction of the Courts of the judicial district of Dendermonde.
If one or more provisions of this agreement should be null and void, such nullity shall not affect the validity of the other provisions. The provision(s) that have no effect shall then be replaced by others that have the same effect on a commercial level.
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* This version is indicative only.