June 2016 Version
I. IDENTIFICATION - SCOPE
Fusiref Refractories, hereinafter «FUSIREF» is a limited company under Belgian law, with registered office at 7321 Bernissart, rue de l’Industrie 1 a, registered in the ECB under no. BE 0432.636.628.
These terms & conditions apply to all business relations and orders of goods and/or services and work by FUSIREF.
The application of these terms & conditions constitutes a determining factor of FUSIREF’s consent. Therefore, any accepted order implies full agreement to these terms & conditions, excluding any clauses or conditions indicated on letters and documents from the supplier.
The present Terms & conditions can only be deviated from by prior written agreement of FUSIREF. Any derogation granted by FUSIREF to these terms & conditions does invalidate other provisions in any way.
The present terms & conditions and provisions mentioned in the order transmitted to the supplier, if any specific conditions FUSIREF form a contract, complement each other and constitute the entirety of the contractual relations. In case of conflict with the purchase terms& conditions, the text of the issued orders by FUSIREF prevail.
If one of the clauses of these terms & conditions is declared void, this invalidity shall not affect the validity of the remaining provisions.
II. FORMATION OF THE CONTRACT
No provision of goods, services or work will be accepted unless it has been the subject of a purchase order issued by FUSIREF services and signed by duly authorized persons to commit FUSIREF.
Any changes made by the supplier to the conditions of the order shall be deemed void without prior written consent of FUSIREF.
The agreed prices are firm and not subject to review.
Unless otherwise provided in the order, the provision of packaging, means of protection and mounting are included in the price of the supply. Their take-back and processing is at charge of the supplier.
Deadlines are peremptory and constitute a commitment for the supplier to deliver on the date, place and in accordance with any other condition specified in the order. It is an obligation of result.
The supplier shall inform FUSIREF immediately of any event that may have an influence on these deadlines.
The penalties applicable in the event of delay are equal to 10% of the amount of the order, without prejudice to FUSIREF to make use of the option of replacement and claim damage and additional interests for the damage actually suffered.
V. TRANSFER OF OWNERSHIP - SHIPMENT - TRANSFER OF RISK
The transfer of ownership occurs throughout the delivery on the understanding that supplier remains solely responsible for the full performance of his obligations and that the risks inherent in the provision of goods and/or services and/or work remain at charge of the supplier up to the approval and/or the final receipt.
Shipments will be made following the instructions of FUSIREF.
The supplier shall address a detailed shipment form on the day of shipping indicating the references of the order. If shipment is made by a third party, he shall give the necessary instructions to ensure the above requirements are met and the shipping documents indicate that the shipment is made on behalf and at the responsibility of the supplier.
FUSIREF expressly reserves the right to refuse and return insufficiently announced goods at the costs, risks and responsibility of the supplier.
In case of delay in delivery, for any reason, even through FUSIREF, the perfect conservation of the goods is guaranteed by the supplier.
Goods and services are subject to express approval or receipt within a minimum period of 15 working days from the date of the delivery of the goods or the completion of the services or work, as the case may be, in the workshops of FUSIREF, on site or any other place designated in the order.
In this context, will be only taken into consideration, the weight recorded in the workshops of FUSIREF, on site or any other place designated in the order.
If the provision contains raw elements that must be treated by FUSIREF, the approval or receipt shall occur within a period of 15 working days at least from the end of processing .
In any event, any approval or receipt is subject to the suspensive condition of approval or receipt of the delivery by the client of FUSIREF.
Any refused or excess delivery will stay in the workshops of FUSIREF, at the expense and risk of the supplier, its possible storage never implying approval.
VII. INTELLECTUAL AND INDUSTRIAL PROPERTY - CONFIDENTIALITY
Plans, drawings, models and all data and documents delivered to the supplier by FUSIREF remain its property or that of its author. It is the same for all the goods and services made on basis of FUSIREF orders.
These data are confidential and the supplier undertakes, both during and at the end of the contractual relation to not disclose, use, reproduce both for his benefit and for the benefit of third parties, the confidential information of any kind obtained from FUSIREF, companies related to it and their business partners, and vice versa.
It cannot be used for other purposes than that for which the data have been communicated.
These data should be returned to FUSIREF on request, failing which a lump sum of 500 euros per day of delay will be due.
The supplier guarantees FUSIREF that the industrial/intellectual property rights or exclusive use rights owned by third parties are not violated by the sale, the use of the goods and services provided. The price includes the grant to the benefit of FUSIREF and its customers, of the right to use the intellectual and/or industrial property rights.
VIII. INVOICING - PAYMENT
Invoices must reach FUSIREF at the latest 10 calendar days after the order was completed in full. They must be sent to the accounting department on the invoicing address mentioned on the order form. The invoices indicate the reference number of the FUSIREF order form (a single order per invoice) and are accompanied by a copy of the order form as well as the delivery note or the service note.
For the supplies or services of a successive nature subject to partial billing, each invoice will necessarily summarize the total amount of the supplies from the start and will deduct the total already invoiced parts, so as to justify the amount of the new invoice issued.
Unless otherwise specified on the order form of FUSIREF, invoices are payable 60 days end of month date of invoice and exclusively by bank transfer, providing that the supplier has fulfilled his contractual obligations.
In the event of breach by the supplier of any of his obligations, FUSIREF is authorized to consider all of its debts and possible claims against the supplier, as a single contractual commitment.
The payment of the invoices cannot be regarded as approval or receipt or as waiver of rights that FUSIREF could argue.
Without prejudice to legal guarantees particularly as regards hidden defects and decennial warranty the Supplier guarantees the supplies and services for a period of 24 months from the date of approval or the final receipt against all defects and this regardless of the cause of the failure.
During this period, the supplier is required to intervene as soon as possible to replace any defective element and/or obtain from its supply the usual characteristics and contractual performance. This intervention is made at charge of the supplier, including the costs of transport, labour and adjustment.
Any repaired or replaced supply is the subject of a new warranty of 24 months. If the replaced supply is essential to the proper functioning of the equipment, all of it will be guaranteed for a new period of 24 months.
X. LIABILITY - REPLACEMENT - FORCE MAJEURE
The supplier is sole responsible for the correct fulfilment of the order, within the agreed time limits. It is an obligation of result.
When the order includes the installation, assembly, start-up or other services, its performance will be entirely at the risk of the supplier, even when the latter would have entrusted the performance of these services to others, after agreement by FUSIREF.
The supplier shall compensate FUSIREF for any material or intangible, direct or indirect damage, including financial damage resulting from a criminal conviction, which occurs after the failure or improper performance of one or more obligations which are the subject of the order or any other fault or negligence. This implies, among others, that the supplier guarantees FUSIREF against any action for liability by a client of FUSIREF or another third party, due to the non-performance or improper performance of the order by the supplier or because his actions or those he is responsible for.
The supplier will establish proof of subscription at his charge, of adequate insurance, covering the consequences of his acts, negligence or omissions that could result for FUSIREF.
Without prejudice to the above, FUSIREF can use the option of replacement and consequently take standard measures if the supplier does not react for 5 working days to the addressed to him for fulfilling his contractual obligations and by which FUSIREF notifies its decision to resort to standard measures. This work will be undertaken at the risk and peril of the supplier and shall remain at his charge as well as all the other disadvantages resulting from his shortcomings.
All the delivered material may be implemented by the third party supplier.
In case of dispute on standard measures or the reality of the shortcomings cited at charge of the supplier, FUSIREF will appoint an expert entrusted with a complete mission for the assessment of damages and liabilities, whose conclusions will be imposed on the parties.
Neither party can engage the liability of the other if the execution of obligations of one of them is delayed or prevented due to a case of force majeure.
The party which invokes one of the above circumstances must notify the other party in writing without delay and within 3 working days at the latest of the finding, its intervention and their end.
If the force majeure situation continues its effects for more than 15 calendar days, FUSIREF will be entitled to unilaterally terminate the contract, unless the supplier can claim damages and interests.
Strikes at the supplier or his sub-contractors and/or suppliers are not considered as cases of force majeure.
The supplier may only rely on force majeure or other unforeseeable circumstances if FUSIREF may also enforce these circumstances versus its customers.
XI. TRANSFER - SUB-CONTRACTING
The supplier may not transfer or sub-contract his rights and obligations, in full or in part, and that result from the order without the prior written consent of FUSIREF, under penalty of the termination of the contract.
In the event of sub-contracting expressly authorized by FUSIREF, the Supplier guarantees FUSIREF of the fiscal, social and salary obligations compliance of its authorized subcontractor( s).
The supplier shall compensate FUSIREF for expenses, losses, penalties, fines and generally any expenses it has incurred due to the failure of his social and/or fiscal and/or salary obligations by the supplier and/or his sub-contractor (s). FUSIREF may proceed to compensation between these amounts and the invoices issued by the supplier.
XII. TERMINATION OF THE CONTRACT
FUSIREF shall have the right to put an end to its order when exceptional circumstances make any professional co-operation with the supplier permanently impossible, on the understanding that the following circumstances must particularly be considered exceptional circumstances to justify an early break, without notice or compensation:
- The request for deferment of payment or pursuant to the Act on the continuity of enterprises or any similar procedure;
- Liquidation or insolvency;
- Seizure of the assets of the supplier or if the latter manifests the outright intention to file for bankruptcy, seek such deferment of payment or to bring such proceedings.
- The non-respect by the supplier of his fiscal, social and/or salary obligations.
The supplier is not allowed to reveal the logo or name of FUSIREF on its website.
XIV. APPLICABLE LAW - JURISDICTION CLAUSE:
Belgian law applies and governs the contractual relations, including the present terms& conditions in which FUSIREF intervenes, with the exclusion of the Convention of the United Nations on contracts for the international sale of goods, concluded at Vienna on 11 April 1980.
The courts of the judicial district in which the headquarters of FUSIREF are located are sole competent in case of dispute relating to the formation, the validity of execution, the interpretation, the end of the contractual relation, even in the case of recourse in warranty or the plurality of defendants.