General Sales Conditions

GENERAL CONDITIONS OF SUPPLY OF MERMET EUROPE

BUSINESS TO BUSINESS SUPPLIES

 
1.    DEFINITIONS 
In these General Terms and Conditions:
Business Days: means days on which banks are open for business in Belgium.
Customer: means the counterparty of Mermet Europe, a company or natural person, acting in the course of trade.
Delivery: transfer of physical possession to the Customer, Ex-Works under the latest version of Incoterms published at the time of the Supply Contract.
Force Majeure Event: any circumstance or event, unforeseeable and beyond the control of Mermet Europe that prevents Mermet Europe to perform its obligation(s) under a Supply Contract, including but not limited to fire, flood or other natural forces, epidemic, war (whether declared or not), riot, insurrection, terrorism, restrictions in the use of power, embargo, governmental action, industrial action (including strikes and lock-outs), market disruption and defects or delays in deliveries by subcontractors caused by any of these events.
Goods: shall mean the products in the quantities described in the applicable Supply Contract.
Invoice: means Mermet Europe’s invoice for the supply of Goods.
Mermet Europe: means MERMET EUROPE BV, a company incorporated under the laws of Belgium, having its registered office at Rijksweg 125, 8531 Harelbeke, Belgium, registered in the Crossroads Bank for Enterprises under number 9896.806.075; and
Supply Contract: an agreement concluded per Article 5(b) of these General Terms and Conditions between Mermet Europe and the Customer.

2.    EXCLUSION OF CUSTOMER’S CONDITIONS
a. These General Terms and Conditions are an integral part of each Supply Contract entered into between Mermet Europe and its business Customers and shall also apply to all offers for the supply of Goods (and these General Terms and Conditions shall be construed accordingly). 
b. The applicability of any conflicting terms and conditions of the Customer are expressly ruled out. 
c. Mermet Europe’s cognizance of the Customer’s terms and conditions of purchase can never be construed as tacit acceptance thereof or derogation from these General Terms and Conditions.

3.    EXCLUSION OF MARKETING AND PROMOTIONAL MATERIAL
The content of brochures and other marketing and promotional materials, whether printed or in digital format does not bind Mermet Europe unless expressly incorporated into the relevant Supply Contract.

4.    VARIATIONS
a. Variations to these General Terms and Conditions for a particular Supply Contract are valid only if expressly agreed by Mermet Europe in writing. 
b. In the event of a variation, the other provisions of these General Terms and Conditions shall remain in full force. 
c. In the event of any conflict between this English language version and any translation of these General Terms and Conditions, this English language version shall prevail.

5.    OFFERS, ORDERS AND ACCEPTANCE
a. Mermet Europe’s offers to supply Goods are non-binding and may be revoked at any time up to seven (7) Business Days after receipt of Customer acceptance.
b. Notwithstanding the foregoing paragraph (Article 5(a)), Supply Contracts are concluded only after acceptance of a Customer’s order by Mermet Europe. 
c. Acceptance shall be made by means of a written confirmation from Mermet Europe or by Mermet Europe filling the Customer’s order.

6.    PRICE
a. Unless expressly stated, Mermet Europe’s offers to supply Goods exclude (i) sales taxes (e.g. VAT), (ii) customs duties, (iii) transport costs, and (iv) insurance. 
b. All prices are in Euros, unless otherwise stated. 
c. Mermet Europe may increase the agreed price if and to the extent that adverse circumstances occur, including increases in direct and indirect costs and changes in currencies or exchange rates, which could not have been reasonably foreseen when entering into the applicable Supply Contract. 
d. In the event of a price increase of more than 10%, Customer may cancel the Supply Contract for the supply of any Goods which have not been dispatched.

7.    PAYMENT TERMS
a. Mermet Europe determines payment terms on the basis of the nature and size of each order. 
b. Absent express  agreement stipulating otherwise, all Invoices must be settled within thirty (30) days. 
c. If the Supply Contract permits partial payments and a partial payment is missed, then the Customer is in default by operation of law and the full balance outstanding will be immediately due and payable. 
d. The applicable Supply Contract may require payment in advance or further security from the Customer, which Customer shall provide immediately at the request of Mermet Europe. 
e. If Mermet Europe has partially complied with its obligations, it is entitled to a proportional part of the agreed price. 
f.  Any right of the Customer to suspend or set-off payments, to Mermet Europe, regardless of reason, is expressly excluded. 

8.    LATE PAYMENT
a. As from the moment Customer is in default, Customer shall pay interest in the amount of the greater of (a) 1% for each month or part thereof, or (b) the statutory rate as described in EC Directive 2000/35 on the outstanding Invoice amount. 
b. If in spite of written notice Customer fails to pay and Mermet Europe assigns the debt to a debt collection agency, Customer is liable to pay extrajudicial collection costs in the amount of 15% of the outstanding Invoice amount, subject to a minimum of €450. 
c. Payments made by Customer shall always be applied in the first instance toward payment of interest and costs and subsequently for payment of the longest outstanding Invoice, even if Customer indicates otherwise in its payment order.

9.    RETENTION OF PROPERTY RIGHTS 
a. Mermet Europe retains ownership of all Goods until Customer has paid all monies due to Mermet Europe in respect of the applicable Supply Contract. The Customer shall ensure the Goods are stored with due care and separated from similar goods and that the Goods shall remain identifiable as the Goods delivered and owned by Mermet Europe. The Customer shall immediately notify in writing any third party claiming an interest in or authority over any of the Goods, including an attachment, a pledge or other encumbrance, and appointment of an administrator, receiver or trustee and shall inform Mermet Europe of any such claimed interest or authority over the Goods. In the event of a payment default of the Customer in respect of any amounts owing to Mermet Europe in respect of the applicable Supply Contract, Mermet Europe shall be entitled to reclaim and collect the Goods delivered under retention of title without prior notice.
b. Notwithstanding the foregoing paragraph (Article 9(a)), the Customer has the right to dispose of such Goods to third parties if (i) it is necessary for the Customer to continue to operate, and (ii) the Customer demands and receives immediate payment from its Customers. 
c. The Customer has no right or authority to charge, encumber, pledge or allow a lien to be placed upon any Goods over which Mermet Europe has retention of title. 
d. The Customer covenants to assign or pledge, immediately upon demand and at the choice of Mermet Europe, all accounts receivable that are created or to be created from the sale of any Goods over which Mermet Europe has retention of title.

10.    SUSPENSION OF SUPPLY
a. Mermet Europe may suspend performance of a particular Supply Contract if Customer (i) fails to make payment due under previous Supply Contracts, or (ii) fails to provide security following a request of Mermet Europe per Article 7(d) and/or 9(d) of these General Terms and Conditions, or (iii) fails in any other way to comply with its obligations to Mermet Europe. 
b. Mermet Europe may suspend a Supply Contract, without the Customer being in default, due to a Force Majeure Event if Mermet Europe informs the Customer of the Force Majeure Event within five (5) Business Days of its occurrence.

11.    DELIVERY & RISK 
a. Delivery times given are to be regarded as approximate and shall in no event be regarded as binding deadlines, unless such has been expressly agreed in writing. 
b. In the event of non-timely Delivery, Customer must notify Mermet Europe in writing and provide at least seven (7) Business Days grace before Mermet Europe will be considered to be in default for late Delivery. 
c. Customer is obliged to fully cooperate with Delivery and Customer shall be in default if Customer refuses or is unable to take Delivery of the Goods. d. If the Delivery of the Goods is delayed due to an act or omission of the Customer, Customer shall compensate Mermet Europe for all losses incurred as a result thereof, including costs of transport, insurance and storage.

12.    INSPECTION
a. Customer is obliged within three (3) Business Days after Delivery to inspect the Goods for defects or for deviations from the Supply Contract and must immediately thereafter notify Mermet Europe in writing of any deviations or defects. 
b. Customer may not assert any further right against Mermet Europe if any deviations or defects have not been notified in writing to Mermet Europe within a period of three (3) Business Days after Delivery. 
c. Customer may not assert a claim for deviations or defects if (i) Customer has used the Goods, or (ii) Customer has not given Mermet Europe the opportunity to repair, supplement or replace any defects or deviations.

13.    DEVIATIONS IN QUANTITIES / CHANGES IN PRODUCTION
a. Customer accepts a deviation in production and Delivery of non-standard quantities of Goods ordered by Customer, by a margin of +/- 10% of the ordered quantity. 
b. The actual quantity of Goods delivered will be invoiced to the Customer. 
c. Mermet Europe may make changes to the component parts, materials, assembly, design and manufacturing procedure used in the production of the Goods without reference to or consultation with the Customer, provided that the Goods continue to comply with all applicable statutory and regulatory requirements.

14.    TERMINATION
a. Customer may terminate a Supply Contract for default if Mermet Europe has been given written notification of the default by the Customer and fails to make good the default within thirty (30) days thereof. 
b. Mermet Europe may terminate a Supply Contract in part or in whole without prejudice to its right to compensation for costs and loss of profit and without prior notice (i) if Customer obtains a moratorium on making payments, files a petition for bankruptcy, debtor relief or other protection from creditors, or (ii) Customer’s business enters administration or is liquidated (other than on behalf of reorganization or combination of enterprises or assets), or (iii) Customer fails to provide security required by Mermet Europe per Article 7(d) and/or 9(d) of these General Terms and Conditions, or (iv) Customer fails to comply with any material obligation on its part arising from a Supply Contract despite having been given notice of default. 
c. In the event of partial termination, Customer cannot claim annulment of performances already made by Mermet Europe and Mermet Europe shall be fully entitled to receive payment in this respect. 
d. Either party shall be entitled to terminate a Supply Contract if performance is suspended due to a Force Majeure Event for a period of more than six (6) months in which event neither party shall be liable to the other for damages save for that Customer can recover the price paid for Goods which are not delivered as a result of the Force Majeure Event. 
e. In case of termination of the Supply Contract all amounts owed by the Customer to Mermet Europe shall become immediately due and payable without delay or (further) notice.

15.    MANUFACTURERS WARRANTY
a. Goods which include solar shading fabrics are supplied with a five (5) year manufacturer’s warranty subject to (i) normal conditions of use and (ii) care of the solar shading fabrics as described in the technical specifications and according to the manufacturer’s maintenance recommendations. 
b. The warranty is subject to full payment of the Invoice and comes into effect on the date of purchase. 
c. The warranty covers (i) breaking strength (equal to at least 70% of its original value according to ISO 1421), (ii) fire resistance classifications specified at the Mermet Europe website www.mermet.eu.com, and (iii) uniform fading due to ultraviolet radiation. 
d. Under this warranty, Mermet Europe undertakes to replace free of charge any panels of fabric accepted as defective, after inspection and agreement by the Mermet Europe quality department.
e. The duration of the warranty for Goods which are replaced under warranty runs from the date of purchase of the original Goods. 
f. All claims must be submitted with the Invoice for the original Goods and received by Mermet Europe within thirty (30) days of the Customer becoming aware of the defect. 

16.    WARRANTY EXCLUSIONS
a. The manufacturer’s warranty described in Article 15 of these General Terms and Conditions does not cover defects or deterioration due to (i) transport or storage, (ii) assembly, installation or operation, (iii) failure of the mechanism or system to which the fabric is attached, or (iv) normal wear and tear or ageing of the solar shading fabric, (v) accidents, bad weather or neglect, (vi) high winds, atmospheric pollution, accidental discharges, (vii) use of improper chemical cleaners, adhesives, abrasive products and misapplied procedures. 
b. Furthermore, the manufacturer’s warranty does not cover the costs of labour, dismantling, reassembly and transport. 
c. Mermet Europe accepts no liability if the Goods are not suitable for the Buyer’s intended use or cease to be suitable for the Buyer’s intended use following a permitted change to the component parts, materials, assembly, design or manufacturing procedure per Article 13(c) of these General Terms & Conditions.

17.    LIMITATION ON LIABILITY
a. Mermet Europe is only liable for damage that is the direct and exclusive consequence of intent or gross negligence of Mermet Europe and to the extent that it has been properly notified in writing of its default by Customer and Mermet Europe has been given a reasonable period of time to provide repair or replacement. 
b. Mermet Europe does not accept in any case whatsoever liability for trading loss or other indirect damage within the broadest sense of that term incurred by Customer, including consequential loss, loss of profits and cost savings, regardless of cause. 
c. The total liability of Mermet Europe shall not exceed in any case whatsoever an amount equal to the price excluding VAT stipulated for the Goods concerned.

18.    CONFIDENTIAL INFORMATION
a. Mermet Europe and the Customer acknowledge that all business information, which is exchanged between the parties within the negotiation of each Supply Contract is of a confidential nature. b. Mermet Europe and the Customer agree to keep secret such confidential information and not to disclose it without prior written permission from the other party (being either Mermet Europe or the Customer, as the case may be). 

19.    INTELLECTUAL/INDUSTRIAL PROPERTY
a. Customer may not remove, alter or conceal any designations concerning trademarks, trade names or other rights of intellectual and/or industrial property from the Goods. 
b. All rights of intellectual or industrial property in the Goods, including but not limited to drawings, descriptions, advertising matter, etc., remain at all times the property of Mermet Europe and may not be reproduced, published or released in any other way to third parties without the express written consent of Mermet Europe.

20.    COMPLIANCE WITH LAWS
Customer shall comply fully with all applicable laws, rules and regulations, including those of the United States, the European Union and any and all other jurisdictions globally which apply to Customer’s business activities in connection with any Supply Contract. 

21.    ANTI-CORRUPTION AND ANTI-BRIBERY
a. Customer represents and warrants to Mermet Europe that Customer shall comply with all local, national, and other laws of all jurisdictions globally relating to anti-corruption, bribery, extortion, kickbacks, or similar matters which are applicable to Customer’s business activities in connection with any Supply Contract, and that Customer will take no action that will cause Customer or Mermet Europe to violate any such laws. 
b. Customer specifically represents and warrants to Mermet Europe that Customer is familiar with the U.S. Foreign Corrupt Practices Act of 1977, as amended (the “FCPA”), and the U.K. Bribery Act and that Customer shall comply with the FCPA and U.K. Bribery Act, and will take no action that will cause Customer or Mermet Europe to violate these laws.
c. It is the intent of Customer and Mermet Europe, and Customer represents and warrants to Mermet Europe, that no payment of money or provision of anything of value will be offered, promised, paid or transferred, directly or indirectly, by any person or entity, to any government official, government employee, or employee of any company owned in part by a government, political party, political party official, or candidate for any government office or political party office to induce such organizations or persons to use their authority or influence to obtain or retain an improper business advantage for Customer or for Mermet Europe, or which otherwise constitute or have the purpose or effect of public or commercial bribery, acceptance of or acquiescence in extortion, kickbacks or other unlawful or improper means of obtaining business or any improper advantage, with respect to any of Customer’s activities related in any way to any Supply Contract, including without limitation any payment of money or provision of anything of value to any employee of any customer in order to secure a sale.

22.    TRADE CONTROLS
a. Products and technical data supplied by Mermet Europe are subject to sanctions and export control laws and regulations maintained by the United States, the European Union, and any and all other jurisdictions globally which apply to Customer’s business activities in connection with any Supply Contract. Customer will comply with all applicable restrictions regarding exports, re-exports, and transfers in connection with any Supply Contract, including by obtaining any required U.S., European Union or other country licenses, authorizations, or approvals. 
b. Customer will inform each of its customers (where the circumstances suggest the customer may be exporting), employees, and other persons acting on Customer’s behalf in connection with any Supply contract of applicable restrictions on exports, re-exports, or transfers of the products and technical data supplied by Mermet Europe. 

23.    DISCLOSURE, AUDIT, TRAINING AND LIABILITY
a. Customer agrees that should it learn or have reason to know of any offer, promise, payment or transfer of money or provision of anything of value that would violate the FCPA, the U.K. Bribery Act, or the anti-corruption and anti-bribery laws which apply to Customer’s business activities in connection with any Supply Contract, Customer shall immediately disclose it to Mermet Europe. 
b. Customer further agrees to provide prompt notice to Mermet Europe if at any time Customer becomes aware of any violation or potential violation of any export control and sanctions laws and regulations in connection with Customer’s business activities in connection with any Supply Contract. 
c. Mermet Europe shall have reasonable access to Customer’s books and records and the right to audit them on a periodic basis to ensure Customer’s compliance with all applicable laws and the provisions of any Supply Contract. Customer shall cooperate fully and promptly with any compliance investigation Mermet Europe may initiate to review Customer’s performance under the Compliance With Laws provisions of these General Terms and Conditions. 
d. Customer shall provide annual certification of compliance with the FCPA, the U.K. Bribery Act, U.S. and other applicable export control and sanctions laws and regulations, and all other laws applicable to Customer’s activities related to any Supply Contract in the form provided from time to time by Mermet Europe. Customer shall participate in anti-corruption/anti-bribery and sanctions and export control training offered by Mermet Europe as Mermet Europe may direct from time to time. 
e. Mermet Europe may withhold delivery and payments under any, or terminate any Supply Contract immediately, if it believes, in good faith, that Customer has breached the foregoing compliance with laws provisions of these General Terms and Conditions, or caused  Mermet Euroep to violate the FCPA, U.K. Bribery Act, U.S. and other applicable export control and sanctions laws and regulations, or other applicable laws. 
f. Mermet Europe shall not be liable to Customer for any claim, losses, or damages related to Mermet Europe’s decision to exercise its rights under this provision. 
g. Customer agrees that it bears sole responsibility for any violation of the foregoing compliance with laws provisions of these General Terms and Conditions and further agrees to protect, indemnify and hold harmless Mermet Europe from any claim, damages, liability costs, fees and expenses incurred by Mermet Europe as a result of Customer’s violation. 
h. Any products or other items sold in violation of any export controls or sanctions laws cannot be serviced or supported by Mermet Europe and any warranty otherwise applicable to any such items is therefore void. i. Customer acknowledges that nothing in any Supply Contract shall cause Mermet Europe to take any action that would cause Mermet Europe to violate U.S. and other applicable export control and sanctions laws and regulations.

24.    SUBSTITUTION
If any provision of these General Terms and Conditions is null and void or unenforceable, the remaining provisions shall remain in full force.

25.    APPLICABLE LAW
a. All Supply Contracts and any (non-contractual) rights derived therefrom, as well as all disputes arising therefrom shall be exclusively governed by the laws of Belgium. 
b. The parties declare that the International Conventions on the Sale of Goods do not apply.

26.    DISPUTE RESOLUTION
Except as expressly otherwise provided, the court of Kortrijk, Belgium, shall have sole jurisdiction over any disputes arising out of or in connection with any Supply Contracts, including regarding the existence or validity of any of these General Terms and Conditions, including this Article 26.