GENERAL TERMS AND CONDITIONS OF ERBIVO N.V.

1. Scope and conclusion of the agreement — These general terms and conditions form an essential part of every contract with Erbivo. The customer accepts that every order, quotation, and agreement relating to the delivery of goods and (installation) work by Erbivo is subject to these general terms and conditions, to the exclusion of the customer's general or special terms and conditions, even if these are communicated subsequently, except in the event that the customer makes comments in writing before accepting a quotation or, in the absence of a quotation, immediately after receiving an order confirmation.  In that case, Erbivo will respond in writing as soon as possible and the parties undertake to do what is necessary within a reasonable period of time, taking into account the (timely) execution of the order/work, to reach agreement in good faith on the elements that are under discussion. If no agreement can be reached, the contract will not be concluded. The customer expressly acknowledges that all clauses were negotiable.  

Any amendement to these general terms and conditions shall only be valid if recorded in writing.

An agreement with Erbivo is concluded either by: (i) signing the quotation or written acceptance by the customer; (ii) sending the order confirmation by Erbivo; (iii) the commencement of performance by Erbivo.

All additional works, changes and orders requested after the conclusion of the agreement shall be charged separately. These may be proven by all legal means and shall automatically result in the lapse of the originally agreed delivery periods, which must be renegotiated.

The customer alone bears the risk of all consequences arising from incomplete, incorrect, inaccurate or late information or documents. Erbivo is not obliged to verify their accuracy.

2. Prices — All prices are exclusive of taxes and levies, unless otherwise agreed in writing. Quotations are based on the applicable levels of wages, materials and services. If these change independently of Erbivo’s will, Erbivo reserves the right to adjust the prices proportionally, in accordance with legally permitted standards. In such case, the customer may terminate the agreement in writing within eight days following notification of the price adjustment, without either party being entitled to any compensation.

3. Delivery Periods and Performance — Delivery and performance periods are provided for information purposes only and are not binding unless expressly agreed. Binding periods shall be suspended in the event of unforeseen circumstances beyond Erbivo’s control, provided the customer is notified within 10 days of the incident.

If performance or delivery is delayed due to the customer, its appointees or third parties acting on its behalf, or if the works cannot commence for a reason attributable to the customer, the customer shall be obliged to compensate all resulting costs. The minimum lump-sum compensation amounts to 10% of the price, without prejudice to advances already paid. Erbivo shall determine the new start date itself, without any delay compensation being due.

In the event of exceeding a binding period not attributable to force majeure or the customer, the customer may give Erbivo formal notice by registered letter. If Erbivo fails to comply within three weeks, the customer may unilaterally terminate the agreement by registered letter. In such case, the customer shall only be entitled to reimbursement of amounts already paid, without additional compensation, except in the event of intentional fault by Erbivo.  

4. Delivery, Acceptance and Warranty — The customer must inspect the goods immediately after delivery. Any complaints regarding non-conformity or visible defects must, under penalty of forfeiture, be notified in writing within eight days after delivery/acceptance and prior to any use or resale.

The work shall be deemed accepted: (i) upon acceptance by the customer or its representative after inspection; (ii) upon signing of the work or delivery slip; (iii) if the customer is absent at the time set for acceptance or does not cooperate with acceptance and inspection, or unjustifiably refuses approval; (iv) upon use by the customer; (v) if defects are not reported immediately upon inspection and confirmed in writing within 48 hours.

Minor and/or customary defects do not prevent acceptance by Erbivo. These shortcomings shall be recorded in writing by the parties, with Erbivo indicating the period within which they will be remedied. However, slight differences in colour or dimensions shall not be considered defects insofar as they are technically unavoidable, generally accepted or inherent to the materials used.

Hidden defects must be reported by registered letter within eight days after discovery, under penalty of forfeiture. The warranty is excluded in the event of incorrect use or use other than that intended.  

The warranty for goods and works is six (6) months from delivery or acceptance and is limited to free repair or replacement, at Erbivo’s exclusive choice. If this proves impossible, the price paid shall be refunded against return of the goods, without interest and without any entitlement to compensation of any kind, in particular for indirect or immaterial damage.

Limitations of liability do not apply in the event of intentional fault or damage to life or physical integrity. In the event of gross fault or other breach, Erbivo’s liability is limited to the amount effectively covered by its insurance, with an absolute maximum equal to the coverage ceiling of the insurance policies taken out, namely:  

– Civil liability after delivery: combined bodily injury and material damage: EUR 2,500,000.00 and indirect immaterial damage: EUR 625,000;  

– Civil liability for entrusted objects: material damage and indirect immaterial damage per claim: EUR 25,000.

5. Any dispute of an invoice must be made in writing within eight days following the invoice date.  

All invoices are payable within thirty (30) days from the invoice date, unless otherwise agreed in writing. In the event of non-payment by the due date, late payment interest shall be due by operation of law and without prior notice, calculated in accordance with the Act of 2 August 2002 on combating late payment in commercial transactions. In addition, and after formal notice, a lump-sum compensation of 10% of the outstanding amount shall be due.

In the event of late payment, Erbivo reserves the right to suspend performance of deliveries or works until full payment has been made, without any compensation being claimable from Erbivo on any ground whatsoever. Erbivo alone determines when delivery or (installation) works may resume, without any compensation for delay being due.

The delivered goods remain the property of Erbivo until full payment has been made (retention of title clause).

6. Cancellation, Suspension and Termination — The agreement may be terminated without compensation in the event of force majeure (strike, lock-out or other circumstances definitively preventing performance).

Any cancellation by the customer shall only be valid after written acceptance by Erbivo, subject to statutory exceptions. In the event of accepted cancellation or unilateral termination by the customer, the customer shall be liable for costs incurred and work performed, increased by a lump-sum compensation of 30% of the price as compensation for loss of profit.  

Erbivo may unilaterally terminate or suspend the agreement, after formal notice, in the event of manifest insolvency or serious deterioration of the customer’s creditworthiness, including due to late payment or non-payment, enforcement measures taken against the customer and/or any other objectively identifiable event likely to call into question or render impossible the proper performance of the customer’s contractual obligations. In such context, Erbivo may require guarantees; in the event of refusal, Erbivo is entitled to cancel the order, even if the goods have already been dispatched or the works have already commenced. In such case, by way of compensation, the amount referred to in Article 6 §2 shall be due, without prejudice to full payment for deliveries and/or works already partially performed.

In the event of non-payment, Erbivo is entitled to immediately suspend all deliveries and works or to terminate the agreement, in whole or in part, by operation of law and without prior formal notice.

Any serious breach by a party of any of its contractual obligations obliges the defaulting party to remedy the breach and its consequences at its own expense, within a reasonable period set by the other party and to the satisfaction of that party. Failing this, the agreement shall be terminated by operation of law, without prejudice to the other rights of the non-defaulting party, including the right to compensation. Where the breach is irreversible, no prior formal notice with a remedy period is required. This provision does not, however, affect other provisions of these general terms and conditions, including those providing for more extensive termination possibilities or limiting the liability of the parties.  

Where services or performances are provided, one third (1/3) of the price is due upon signing, one third (1/3) at the commencement of performance, and the balance upon completion, unless otherwise agreed in writing.  

7. Transport and Risk — Unless otherwise agreed, all transport costs are borne by the customer. The risk of loss or damage to the goods (including costs resulting from damaging circumstances occurring after the goods have been handed over to the carrier) shall pass to the customer as soon as the goods are handed over to the first carrier. The customer must insure itself adequately.

8. Applicable Law and Jurisdiction — Every order, quotation and agreement with Erbivo is exclusively governed by Belgian law.

All disputes arising therefrom or related thereto, as well as disputes concerning the formation, interpretation or performance thereof, fall within the exclusive jurisdiction of the competent courts of the judicial district in which Erbivo has its registered office, without prejudice to Erbivo’s right to rely on the jurisdiction provided for in Article 624, 1°, 2° and 4° of the Belgian Judicial Code.

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