GENERAL CONDITIONS OF SALE
Unless explicitly agreed otherwise in writing, the present terms and conditions shall be applicable to all present and future sales agreements between Roam Technology and Buyer (as mentioned on the order confirmation of Roam Technology) for goods as mentioned on any order confirmation. No provision whatsoever in the Buyer’s documents (including its general purchase terms and conditions) is applicable to the sales that have been/are to be concluded between Roam Technology and the Buyer. In the event that explicit preference is given in writing to the terms and conditions of Buyer or to any special agreement whatsoever, the following terms and conditions shall remain valid in a supplementary way.
Orders are considered to be binding for the Buyer. The Buyer shall have no right to cancel orders without written permission of Roam Technology. This permission shall depend upon the payment of all damages caused by the cancellation. Irrespective of the right for Roam Technology to claim execution, parties agree that a cancellation by the Buyer entails an indemnification of minimum 30% of the cancelled order for costs and loss of earnings, without Roam Technology having to prove the existence or the volume of the damage, and notwithstanding the right of Roam Technology to prove and claim it suffered higher damages. All changes to an order have to be made in writing and within 5 working days after the initial order at the latest. In the event Roam Technology already started partial or full execution of the order, after the orderconfirmation, Buyer cannot withhold the non-execution of the changes.
3. Prices – Taxes
The transaction will be concluded at the prices mentioned on the order confirmation. Prices include neither V.A.T. nor any other costs whatsoever (transport, packaging, insurance, import and export taxes, and the like). These costs are to be paid by the Buyer. Prices shall be subject to increases in the event that between the period of the order and the period of delivery, wages and other components that may have an influence on the price (e.g. fiscal tariffs, social security premiums, transport costs, raw material prices, energy costs, exchange rates, and the like) rise for at least 5%, except in case the goods are delivered within 30 days after passing on the order.
4. Payments – Credit limits – Penalties
Invoices that have not been protested by means of a registered letter within eight working days after they have been sent, shall be considered to have been fully accepted by the Buyer. The Buyer must pay all invoices within 30 days after invoice date, unless otherwise agreed, into the bank account mentioned on the front of the invoice. Employees, agents, distributors or representatives of Roam Technology are not authorised to collect payments. All invoices are payable at Roam Technology’ place of business. The exchange-risk is for the account of the Buyer. In case of arrears or in the event of infringement of credit limits, Roam Technology has the right to postpone delivery, without notice of default, until full settlement of all invoices and/or until the buyer’s credit is back within its allowed limits. Possible use of promissory notes, cheques or the permission to draw a bill of exchange by way of covering the agreed price shall never be deemed a novation of the original invoice nor will it void any right of retention, agreement or territorial competence. Overdue payment of one invoice shall cause that all other invoices, for which a particular instalment term has been agreed on, will become immediately due, without previous formal notice of default. Partial payments will firstly be deducted from interests, penalties and possible costs and only then from unpaid invoices. All invoices that have not been settled by the due date will ipso jure be liable to an interest for late payment of 1% per month, as from its due date, without written formal notice of default being necessary. Moreover Roam Technology will have the right to charge 10% on the full amount of the orders by way of compensation, with a minimum of 50 EUR per invoice. In the event that the Buyer does not pay within the agreed term of payment, Roam Technology will be entitled to a reasonable compensation from the Buyer for all relevant collection charges caused by the arrears, without prejudice to its right to compensation for legal costs.
If Roam Technology’ trust in the solvability of the Buyer is damaged because of indicative events, like judicial procedures against the Buyer, Roam Technology retains the right to demand Buyer for suitable warranties or advance payment. If the Buyer does not provide these warrants, Roam Technology reserves the right to annul the entire order or a part of it, even when some goods were already sent, notwithstanding the right of Roam Technology to claim damages and payment of the outstanding invoices and additional costs and interests for late payment.
6. Retention of title
All the goods shall remain the property of Roam Technology until complete payment of all invoiced amounts, including interest, costs, penalties and any taxes. The Buyer shall assume the risks upon delivery. In the event of payment by cheque or any other commercial paper, payment shall only be realised on actual encashment. The Buyer shall do the necessary in order not to jeopardise this retention of ownership. The Buyer expressly undertakes to put the goods at the disposal of Roam Technology and grant access to those places where the unpaid goods are located at the first request of Roam Technology. Should the goods (or any of them) be converted into a new product, whether or not such conversion involves the admixture of any other goods or material whatsoever and in whatever proportions, the conversion shall be deemed to have been effected on behalf of Roam Technology and Roam Technology shall have the full legal and beneficial ownership of the new products, but without accepting any liability whatsoever in respect of such converted goods in relation to any third party, and the Buyer hereby indemnifies Roam Technology in relation thereto. Roam Technology expressly reserves the right to take back unpaid goods, upon first demand, at any place where it finds them, without any redress or objection of the Buyer. Failure to appreciate this right shall constitute a breach of contract and trust and give rise to legal action. The Buyer is not entitled to re-sell unpaid goods. In case it does – in breach of these terms – sell the unpaid goods, the payment-obligation of the third buyer shall be automatically be transferred to Roam Technology. Roam Technology shall therefore be entitled to claim payment from the third buyer, without prejudice to the payment-obligation of the Buyer.
7. Place of delivery
Unless otherwise agreed upon, delivery takes place at the head office of Roam Technology, always EX WORKS Incoterms 2010, even if delivery is handled by Roam Technology in which case Roam Technology only acts as mandatory of the Buyer. All dispatching costs are to be paid by the Buyer. Dispatch is done at the Buyer’s risk.
8. Term of delivery
Mentioned term of delivery is indicative. Delays in delivery can in no case give cause to breach of contract, to a right of compensation or interests, unless explicitly agreed in writing by Roam Technology. In the event that the Buyer’s activities or those of a third-party deliverer directly or indirectly involved in the delivery of the goods will be influenced due to a case of Force majeure (including strikes), Roam Technology cannot be held responsible for possible problems at delivery. Roam Technology reserves the right to carry out partial deliveries. In the event that Buyer does not collect the goods within the set period of time or refuses to collect them, buyer is liable for the costs of custody for these goods, which shall at least equal to 150 EUR per pallet and per month, without prejudice to the right of Roam Technology to charge higher costs, if so applicable at that time.
Except for particular agreements, ordered goods will be delivered in their original package. Roam Technology reserves the right to modify its products and packaging without prior notice. Ordered quantities may be modified in order to meet the standard packaging units.
10. Product warranty
The Buyer guarantees that the contents of the labels and/or recipes and/or formulas as transmitted to Roam Technology by the Company, is in accordance with applicable legislation and does not violate any third party (intellectual property) rights. The Buyer undertakes to indemnify Roam Technology for any and all (direct or indirect) damage (including legal fees) incurred by Roam Technology as a result of a violation of the guarantee under this clause. Should a third party (e.g. a government institute) hold Roam Technology liable for violating applicable legislation or third party (intellectual property) rights in relation with the contents of the labels and/or recipes and/or formulas, the Buyer will immediately intervene in any useful manner – to be indicated by Roam Technology – to ensure maximum indemnification of Roam Technology. Roam Technology’s products are guaranteed against defects and failures due to manufacturing flaws. In consequence, this warranty does not cover any complaint whatsoever as to negligence or wrong use – product modifications – faulty care or maintenance or inadequate storage conditions. This warranty is strictly limited to replacement of products that have been deemed defective by Roam Technology. Products found defective will – after written agreement with Roam Technology – be collected free of charge by Roam Technology. In order to be accepted, all complaints have to be done in accordance with clause 11.
11. Complaints about goods, settlement with regard to taking back the good, recall and liability
In order to be admissible, all complaints with regard to wrong deliveries, lacking, damaged or faulty goods will have to be made in writing to Roam Technology four days after delivery (in the event of visible defects) and within eight days (in the event of hidden or latent defects) after discovery of the hidden defect, and in any event before processing of resale of the goods, mentioning all relevant data, amongst others: order and invoice number, description of the defect, description of the damages... in default of which Roam Technology may consider the complaint as inadmissible. In any case, complaints based on hidden or latent defects shall have to be made within a period of six months after the date of delivery, or any other term as mentioned on the order confirmation. A legal claim on the basis of hidden or latent defects will moreover have to be submitted by the Buyer within two months after discovery of such a defect – and this without prejudice to the above mentioned – in default of which the claim will be inadmissible. Roam Technology liability for costs and damages incurred by the Buyer due to defects shall be limited to the selling price of the goods in dispute, with an absolute maximum amount of 100,000 euro per event, notwithstanding other and more strict clauses in this agreement. An event being the realisation of damage as a consequence of one fact or a series of similarly caused facts. The Buyer will safeguard Roam Technology against claims from third parties, like Buyer’s clients. Goods may only be returned after written approval of Roam Technology. Goods returned without written approval will not be credited. Complaints will give Buyer in no case the right to postpone or defer payment of the price, not even partially, nor the right to compensate damages with outstanding invoices, nor the right to cancel the full order or delivery.The foregoing limitations shall not apply in case of fraud or wilful misconduct by Roam Technology.
12. Default of the Buyer
To the extent the Buyer does not observe any payment condition or other obligation whatsoever, Roam Technology will have the right to also suspend or to postpone its obligations relating to other agreements between parties, without notice of default. After having sent a notice of default by registered mail without effect during 15 days, Roam Technology is moreover allowed to consider the agreement fully terminated or cancelled for the part that has not been executed yet, and this without prejudice to its right for a 30 % indemnification of the amount of invoice by way of compensation for costs and loss of earnings, without Roam Technology having to prove the existence or the volume of the damage. Roam Technology reserves the right to claim the execution of agreement or to prove that the damages it suffered are larger.
13. Force majeure
The Buyer bears the risk of Force majeure . Moreover should the performance of this agreement be hindered or incommensurately be burdened due to Force majeure, Roam Technology’ obligations will be suspended. Force majeure includes amongst others: every occurrence which is reasonably beyond Roam Technology’ control, including but not limited to strikes, lock outs, delays or disruptions in transport, acts of war, riots, fire, orders, bye-laws or regulations from the government or administration, inability to obtain natural gas, other fuels or natural ressources, supply difficulties, scarcity of (raw)materials or lack of products for manufacture, weather conditions that make the execution of the agreement temporarily difficult or impossible, mistakes or delays payable by Roam Technology’ suppliers, acts by third parties, one or more manufacturing mistakes in material from one of Roam Technology’ suppliers, etc., irrespective of whether these problems occur at Roam Technology or the supplier from whom Roam Technology obtains goods and without Roam Technology being obliged to prove the influence thereof.
14. Governing law and competent courts
All issues, questions and disputes concerning the validity, interpretation, enforcement, performance or termination of the agreement between Roam Technology and the Buyer and these general terms and conditions shall be governed by and construed in accordance with the Belgian law, excluding its conflict-of-laws rules and the United Nations Convention on Contracts for the International Sale of Goods (1980) (“Vienna Convention”) (if applicable). Any dispute concerning the validity, interpretation, enforcement or performance of of or under these general terms and conditions shall be submitted to the exclusive jurisdiction of the Belgian courts in Hasselt.
15. Final clauses
Should the court declare one of the above-mentioned clauses ineffective, the other clauses will remain fully applicable. Any failure or delay by Roam Technology in exercising any right under an agreement with the Buyer, any single or partial exercise of any right under such agreement or any partial reaction or absence of reaction by Roam Technology in the event of violation by the Buyer of one or more provisions of such an agreement, shall not operate or be interpreted as a waiver (either express or implied, in whole or in part) of Roam Technology’ rights under such agreement or under the said provision(s), nor shall it preclude any further exercise of any such rights. Any waiver of a right must be express and in writing. If there has been an express written waiver of a right following a specific failure by Roam Technology, this waiver cannot be invoked by the Buyer in favour of a new failure, similar to the prior one, or in favour of any other kind of failure.