Terms and Conditions of Equipment Sales

1. Scope

1.1 In these terms and conditions of equipment sale (“Terms”), the capitalized terms set forth below will have the following meaning:

1. “Buyer” means the person or entity buying the Equipment from Seller; 
2. “Equipment“ means equipment, hardware, machinery, other tangible items and/or any part of the foregoing; 
3. “Quotation” means a written document (including its exhibits) provided by Seller that contains a description of the Equipment offered for sale by Seller to Buyer and the financial and other conditions under which the Equipment can be supplied;
4. “Seller” means RheaVita BV, Poortakkerstraat 9C, 9051 Ghent, Belgium, legal entity number 0695.884.829.

1.2 Save where the parties have agreed to specific terms in a writing signed by both parties, these Terms apply to and are deemed to be incorporated in all of Seller’s agreements for the sale of Equipment. In respect of such sales, these Terms apply to the exclusion of any other (general) terms and conditions of the parties.

1.3 Buyer is deemed to have received these Terms at the time it receives a Quotation from Seller or, in the absence of a Quotation, at the time it places an order with Seller.

1.4 In case of a direct conflict between these Terms and the provisions of a Quotation, the provisions of the Quotation will prevail.

2. Quotations

2.1 Quotations remain valid for 30 days unless otherwise specified therein. If the price of corrosion-resistant steel (as published by Agoria on www.agoria.be) has increased by more than5 percent between the date the Quotation is accepted by Buyer and the date the Equipment is delivered to Buyer, Seller has the right to increase the price set forth in the Quotation accordingly (no right for Buyer to cancel an accepted Quotation will arise from such price increase).

2.2 Unless explicitly stated otherwise in writing, prices quoted are exclusive of (a) all applicable taxes, including without limitation value added tax, excise, sales and/or use tax, and levies and duties of any nature whatsoever applicable to the sale of the Equipment (“Taxes”), (b) packaging, handling, delivery and shipping costs; (c) costs of commissioning, testing and training and any travel, lodging and meals necessary thereto; (d) insurance costs; and (e) customs duties and fees.

2.3 No agreement between Seller and Buyer will arise from (a) a partial acceptance by Buyer of a Quotation, unless such partial order is expressly accepted in writing by Seller; or (b) the acceptance by Buyer of a Quotation that can reasonably be understood to contains an obvious mistake.

2.4 Accepted Quotations (or orders that are otherwise placed) cannot be cancelled or altered by Buyer. Should Buyer in breach of the foregoing cancel an accepted Quotation or order placed by Buyer, then Buyer shall be liable to Seller for the costs of all work done, materials purchased and non-cancellable costs incurred up to the time of receipt of the cancellation notice plus a charge for overhead and lost profit.

3. Payment

3.1 All amounts are stated, and payments are to be made, in EURO. 

3.2 Full payment of each invoice (without any deduction whether by way of set-off, counterclaim, discount, abatement or otherwise) must be made to Seller within 30 days of the invoice date.

3.3 Invoices will be issued for 45% of the total amount on the date of acceptance of the Quotation, for 45% immediately prior to delivery of the Equipment, and for 10% after completion of site acceptance testing on the Equipment (or on the earlier date on which Buyer becomes responsible for the risk of loss of, or damage to, the Equipment pursuant to section 5.3). The foregoing will not apply to accepted Quotations or accepted orders that amount to less than €20.000 (excl. Taxes), which will be invoiced in full on the date of acceptance.

3.4 All invoices shall be deemed accepted unless disputed in good faith within 15 days after receipt. If an invoice is disputed, Buyer shall pay the undisputed portion of the invoice when due. Late payments shall automatically accrue interest daily following the due date at the lesser of 1% per month or the maximum interest allowed by applicable law. Buyer shall pay to Seller the costs and expenses, including reasonable attorney’s fees, incurred in collection of any delinquent amounts.

3.5 If, in Seller's judgment, Buyer's financial condition does not, at any time, justify payment terms as specified above, Seller may cancel any Quotation (whether prior or after acceptance by Buyer) or order placed by Buyer.

3.6 Seller may require Equipment to be delivered to a location outside the country of Seller’s incorporation to be covered by a confirmed irrevocable letter of credit drawn on a bank acceptable to Seller.

3.7 In the event that Buyer is required by any applicable law to deduct any amount from the amounts to be paid to Seller on account of withholding taxes or any other taxes or levies of any kind, Buyer agrees that it shall pay all additional amounts so that the net amounts received by Seller are the full amounts specified in the Quotation.

4. Retention of title

4.1 Equipment shall remain Seller’s property until Buyer has made full payment to Seller of all sums due in respect of the Equipment (upon which title shall pass to Buyer).

4.2 Until payment in full by Buyer, Equipment shall be held (at no cost to Seller) by Buyer as bailee for Seller and will be kept separately from all other goods in such a way that it remains readily identifiable as Seller’s property and Buyer shall not remove, alter or obscure any identifying mark on or packaging of the Equipment. Buyer shall maintain the Equipment in satisfactory condition and keep it insured under policies with such provisions, for such amounts and with such insurers as shall be satisfactory to Seller (and shall hold any proceeds of such insurance in trust for Seller and not mix them with any other money, nor pay the proceeds into an overdrawn bank account).

4.3 On the occurrence of a termination event prior to receipt by Seller of full payment for the Equipment or in the event payment becomes overdue and where not prohibited by law, Seller may with prior written notice enter upon any premises controlled by Buyer where Seller reasonably believes the Equipment to be in order to recover the Equipment without any court order or other process of law.

5. Supply

5.1 The delivery date for Equipment is provided by Seller at the time it provides confirmation to Buyer of the accepted Quotation or order placed by Buyer and is intended to be an estimates only. However, Seller will use reasonable efforts to supply Equipment within the timeline mentioned in the Quotation. Subject to the other provisions of these Terms, Seller will not be liable for any losses, costs, damages or expenses caused by any delay in the delivery of the Equipment.

5.2 Shipment of the Equipment shall be made FCA (Incoterms 2020). On Seller’s delivery of the Equipment to the carrier, risk of damage to or loss of the Equipment shall pass to Buyer and Buyer shall indemnify and hold Seller harmless against all loss of, or damage to, the Equipment from whatsoever cause occurring. If other delivery arrangements are agreed, Seller may, at Buyer’s request and expense, arrange carriage and insure the Equipment against normal transit risks to the value of the price of the Equipment. If Seller arranges transportation of the Equipment for Buyer, in the event of loss of, or damage to, the Equipment (whether or not caused by Seller’s or its chosen carrier’s negligence), Seller’s liability to Buyer shall be limited to passing on to Buyer the benefit of insurance.

5.3 Promptly on Seller’s notification to Buyer that the Equipment is ready for shipment, Buyer will supply Seller with delivery instructions. If appropriate delivery instructions, documents, licenses or authorizations are not received by Seller or if Buyer requests for a shipment to be postponed for more than ten (10) days after the date of such notification, Seller shall be entitled to make arrangements for storage of the Equipment at Buyer’s risk and expense and to charge Buyer accordingly. In such case, Seller’s obligation to deliver the Equipment will be deemed satisfied and Buyer will become responsible for the risk of loss of, or damage to, the Equipment and for paying the full price of the Equipment.

5.4 Buyer agrees to comply with all applicable laws, rules and regulations and obtain at its expense all permits, licenses, authorizations and certificates that may be required in connection with its purchase of the Equipment. This includes any applicable laws, regulations, orders or other restrictions on the export of the Equipment (“Export Laws”). Buyer shall not export or re-export, directly or indirectly, Equipment or information pertaining thereto to any country for which Export Laws require an export license or governmental approval at the time of export or re-export without first obtaining such license or approval and Seller’s performance of the agreement will be conditional upon Buyer obtaining such license or approval. If Equipment is to be exported, Buyer must obtain any import license required for the country into which the Equipment is to be imported. Buyer shall attach to its acceptance of a Quotation the necessary information to permit Seller to commence its work, together with any import license and/or permits and related certificates which may be necessary.

5.5 Equipment will be supplied as available, unless Buyer specifically requests “one consignment”. Each shipment shall be considered a separate and independent transaction. These Terms shall apply separately for each shipment and Seller shall have the right to separately invoice Buyer after each such partial shipment without regard to subsequent deliveries. Delay in delivery of any installment shall not relieve Buyer of its obligations to accept remaining deliveries.

5.6 Seller may suspend shipment of the Equipment if Buyer is in material breach of its obligations under the agreement.

5.7 All Equipment supplied to the destination notified by Buyer will be deemed accepted by Buyer unless Buyer notifies Seller in writing within five (5) business days from delivery that it is not in compliance with the accepted Quotation. Damaged Equipment and packaging must be kept for inspection by Seller and/or the carrier.

5.8 Seller may modify the specification of the Equipment without notice to Buyer provided that the modification will not materially affect the function, form or fit of the Equipment.

5.9 Unless otherwise agreed in writing, installation, commissioning, testing and training is not included in the purchase price for Equipment.

6. Inspection and Testing

6.1 All Equipment is inspected by Seller prior to supply to Buyer and tested where appropriate.

6.2 An additional charge will be made for tests or trial runs carried out at Buyer’s specific request. In the event that Buyer does not attend such tests after 14 days’ notice, Seller will perform the tests and the Equipment will be deemed accepted in Buyer’s absence.

7. Warranty

7.1 If a defect in materials or workmanship affects the Equipment under conditions of normal and proper use and maintenance (fair wear and tear excepted), Seller undertakes to repair or replace (at Seller’s option) the Equipment provided that:

1. Seller is notified in writing of the defect within 15 working days of its occurrence;
2. Buyer has paid the Equipment in full;
3. the Equipment was used for a purpose for which it was suitable and was operated and maintained in accordance with the operating instructions;
4. the defect occurs within 12 months from the date of shipment of the Equipment; 
5. the Equipment has not been repaired or modified by anyone other than Seller or at Seller’s direction;
6. the defect does not arise from Buyer’s specification or instructions; and
7. Buyer returns (at its cost) the defective Equipment which is being or has been replaced to Seller within 10 days of delivery of the replacement Equipment by Seller.

In the case of the Equipment or parts not of Seller’s own manufacture and notwithstanding the foregoing , Seller’s obligation under this section shall be limited to passing on to Buyer the benefit of any guarantee or warranty given to Seller by the manufacturer of such Equipment or part (unless otherwise required by law). This Section 7.1 does not apply to consumables.

7.2 Any repaired or replaced Equipment will continue to be warranted for the unexpired period of the warranty referred to in section 7.1 above.

7.3 Seller may charge Buyer for the costs of shipping Equipment to and from an OEM Service Centre if the Equipment to be repaired or replaced is located in a country in which Seller does not have an OEM Service Centre.

7.4 Failing satisfactory repair or replacement, Seller may satisfy Seller’s liability under this Section 7 by reducing the Equipment price or refunding the Equipment price and retaking the Equipment.

7.5 Except as expressly warranted above, all warranties, conditions and other terms implied by statute or law are excluded to the fullest extent permitted by law.

8. Intellectual Property and Confidentiality

8.1 Seller retains ownership of any patent, copyright, trade secret, design right or other intellectual property right in or relating to the Equipment or any technical information, know-how, drawings and specifications supplied by Seller in relation to Equipment and Buyer shall acquire no rights therein or thereto.

8.2 “Confidential Information” means any proprietary non-public information relating to concepts, ideas, developments, know-how, trade secrets, inventions, patent applications, plans, designs, formulations, processes, (operating) methods and procedures, data, clinical research, samples and specimens, the terms of and negotiations related to the agreement, financials (including costs, prices, Quotations and finances), and business operations of a party furnished or disclosed by such party (the “Disclosing Party”), directly or indirectly (including through affiliates), to the other party (the “Receiving Party”), which is marked ‘confidential’ or which the Receiving Party knows, or should reasonably be expected to know, is confidential, or observed during a site visit, whether such information is in written or unwritten form.

8.3 The Receiving Party shall retain the Confidential Information of the Disclosing Party in confidence and shall not disclose the same to any third party nor use the same, except for the purposes of the agreement. The Receiving Party may only disclose Confidential Information of the Disclosing Party to the Receiving Party’s and its affiliates’ officers, employees, consultants, agents and contractors (each, a “Representative”) who have a need to know for performance hereunder and who are bound by non-disclosure and non-use obligations that are at least as stringent as those contained in this agreement. The Receiving Party shall use the same level of care to prevent any unauthorized use or disclosure of the Disclosing Party’s Confidential Information as it exercises in protecting its own information of a similar nature, and in any event at least a reasonable level of care. The Receiving Party shall not remove or alter any notice of copyright, trademark, logo or legend or any other evidence of ownership, from any originals or copies of Confidential Information obtained from the Disclosing Party.

8.4 The aforementioned obligations of confidentiality do not apply to information that: (a) is available, or becomes available, to the general public without fault of the Receiving Party; (b) was in the possession of the Receiving Party on a non-confidential basis prior to receipt of the same from the Disclosing Party; (c) is obtained by the Receiving Party without an obligation of confidence from a third party who is rightfully in possession of such information and is under no obligation of confidentiality to the Disclosing Party; or (d) is independently developed by Receiving Party Representatives who had no access to and made no use of the Disclosing Party’s Confidential Information. For the purpose of this section, a specific item of Confidential Information shall not be deemed to be within the foregoing exceptions merely because it is embraced by more general information in the public domain or in the possession of the Receiving Party. In addition, any combination of features shall not be deemed to be within the foregoing exceptions merely because individual features are in the public domain or in the possession of the Receiving Party, but only if the combination itself and its principle of operation are in the public domain or in the possession of the Receiving Party.

8.5 If the Receiving Party becomes legally compelled to disclose any of the Disclosing Party's Confidential Information, the Receiving Party shall promptly advise the Disclosing Party of such required disclosure in order that the Disclosing Party may seek a protective order or such other remedy as the Disclosing Party may consider appropriate in the circumstances. The Receiving Party shall disclose only that portion of the Disclosing Party's Confidential Information that it is legally required to disclose and shall further maintain such Confidential Information confidential vis-à-vis all other third parties.

8.6 The obligations under this Section 8 survive any termination of the agreement.

9. Termination

9.1 A party may terminate the agreement upon written notice to the other party, if the other party (a) fails to remedy a material breach of the agreement within thirty (30) days after written notice by the non-defaulting party requiring such remedy; or (b) becomes insolvent, or if proceedings are instituted against it for reorganization or other relief under any bankruptcy law, or if any substantial part of its assets comes under the jurisdiction of a receiver or trustee in an insolvency proceeding authorized by law.

9.2 Termination does not constitute a release or waiver of any right or remedy available to either party in connection herewith. Any provisions of this agreement which by their nature should survive the termination thereof for any reason, shall remain in force until statute-barring of any action regarding the rights and obligations which are the subject matter of the provision in question.

10. Liability and Indemnification

10.1 Buyer will defend, indemnify and hold harmless Seller from and against any claims, actions and demands, and the resulting liabilities, damages, losses, fines, costs and expenses, arising out of or in connection with (a) Buyer’s use of the Equipment; or (b) the distribution or use of products manufactured with the Equipment; (c) Buyer’s breach of this Agreement; or (d) Buyer supplying the Equipment to any third party and the Equipment’s subsequent use.

10.2 Buyer shall use its best endeavors to ensure that in any agreement for the resale of Equipment which is the subject of these Terms, a clause is included which protects Seller from claims from Buyer’s customer and that Buyer obtains an indemnity from Buyer’s customer in favor of Seller in substantially the same and, in any event, no less protective form, than this Section 10. Buyer shall indemnify Seller against any claims, actions and demands, and the resulting liabilities, damages, losses, fines and costs and expenses, arising out of or in connection with any failure by Buyer to include such a clause.

10.3 Notwithstanding anything to the contrary herein and to the maximum extent permitted by Belgian law, in no event shall either party be liable as between the parties for any indirect, secondary, incidental, consequential, multiple, special, exemplary or punitive damages arising out of the subject matter of the agreement, regardless of how caused; provided, however, that losses attributable to a third party claim subject to indemnification hereunder shall not be subject to the foregoing limitation.

10.4 Notwithstanding anything to the contrary in these Terms and to the maximum extent permitted by Belgian law, Supplier's liability under or in respect of the agreement shall be limited to the amount received by Supplier from Buyer under the agreement.

10.5 No action shall be brought by Buyer against Seller unless such action is commenced within one year after the cause of action has accrued. No action or claim shall be made or filed against Seller by Buyer unless Buyer has paid at the time the claim is made or the action is filed, the entire price for the Equipment, in strict accordance with the terms of these Terms.

11. Miscellaneous

11.1 Except for the obligation to make payments hereunder, neither party will be liable or deemed in default for failure or delay in performing any obligations under these Terms where such failure or delay has been occasioned by any cause outside the reasonable control of that party, including fire, natural disasters, epidemics, pandemics, terrorism, strike, riots, unavoidable accidents, war, insurrections, power failure, failure by a supplier to deliver on time or any decree, ruling, decision or instruction, judgment or order issued by any authority. The party whose performance has so been interrupted shall give the other party notice of the interruption and cause thereof, and shall use every reasonable means to resume full performance as soon as possible.

11.2 Buyer may not assign or transfer its rights under these Terms without the prior written consent of Seller. Seller shall have the right to sub-contract its obligations under these Terms provided that Seller shall remain liable to Buyer for Seller’s obligations under these Terms.

11.3 No term or provision of these Terms shall be enforceable by a third party.

11.4 If a provision of these Terms or any part thereof will be found to be illegal or unenforceable in any respect, the validity, legality and enforceability of the remaining provisions and the remaining part of that provision will not in any way be affected thereby and the parties shall in good faith seek to replace such provision by alternative enforceable wording that achieves as much as possible the same economic result.

11.5 The Quotation (if any) and these Terms constitute the entire agreement between Seller and Buyer relating to the purchase and sale of the Equipment. The parties may modify or amend the provisions hereof only by an instrument in writing duly executed by the parties that states the intent of the parties to modify these the relevant agreement.

11.6 No waiver will be valid unless made in a writing that is signed by a duly authorized representative of the party to be charged with such waiver. No waiver of any provision of these Terms in any one or more instances will be deemed to be or construed as a further or continuing waiver of any such provision or of any other provision hereof.

11.7 The agreement shall be governed by and construed in accordance with the laws of Belgium, without giving effect to its conflict of laws provisions. The courts of Ghent, Belgium shall have exclusive jurisdiction to settle any disputes which may arise in connection with the agreement. In addition, Seller shall have the right to bring a suit before a court that has competence over Buyer when the claim is related to payments due from Buyer.

11.8 Nothing contained in these Terms shall be deemed to require Seller to take any action that would constitute, directly or indirectly, a violation of any laws of any applicable jurisdiction, and Seller’s failure to take any such action shall not be deemed a breach hereunder.

11.9 All drawings, descriptive matter, technical specifications, capacities, performance rates, descriptions and other particulars given in respect of the Equipment (whether in catalogues or advertisements or accompanying or referred to in the Quotation) are stated by Seller in good faith based on Seller’s experience as being correct within acceptable tolerances but are not binding in detail and do not form part of the agreement unless expressly stated otherwise. In the absence of any special arrangements to the contrary, it is Buyer’s responsibility to ensure that the Equipment ordered is sufficient and suitable for Buyer’s purposes.

11.10 Buyer hereby acknowledges that relevant safety and training literature relating to the Equipment will be supplied by Seller to Buyer free of charge and may be photocopied by Buyer as required. Buyer shall be fully responsible for the implementation of the contents of all safety and training literature provided to Buyer by Seller. Buyer shall ensure that persons who use, maintain or otherwise handle Equipment receive adequate safety and training literature. Copies of safety literature are available upon request from Seller free of charge, and may be photocopied by Buyer as required.

11.11 Buyer warrants that it is acquiring the Equipment for its own end use and not for reselling, leasing or transferring to a third party (except for lease-back financing or where pre-approved in writing by Seller).