- These General Conditions of Sale (hereinafter: “General Conditions of Sale”) apply in full and exclusively to all commercial transactions, including all proposals, offers, orders and/or agreements, performed by REGENERATION BV, a company incorporated and existing under Belgian law, with its registered office at Beke 45, 9950 Waarschoot, Belgium and registered under number BE 0675.962.514 including the companies affiliated with it (as defined in article 1:20 of the Belgian Companies and Associations Code) (hereinafter: “RESORTECS”) with you as its customer (hereinafter the “Customer”), unless expressly agreed otherwise in writing and signed by an authorized representative of RESORTECS.
- At the moment the commercial transaction is performed, the Customer is deemed to have received and accepted these General Conditions of Sale unconditionally, also if the order was issued by telephone or orally. These General Conditions of Sale are published on the RESORTECS website and may also be sent free of charge upon request.
- All purchase and other conditions of the Customer, irrespective of their name or the manner in which transmitted, are excluded expressly. The Customer waives its right to invoke such conditions.
- In case of inconsistencies between the provisions of these General Conditions of Sale and a separate written agreement, the provisions of that agreement shall prevail.
- RESORTECS reserves the right to alter these General Conditions of Sale at any time. The altered General Conditions of Sale will be published on the RESORTECS website at least 30 days before becoming effective, stating the version number.
2. Offers, orders and order confirmations
- All offers, including all quotations, budgets, preliminary calculations, proposals, publicity or similar announcements by RESORTECS (hereinafter “Offers”), referred to as an offer or otherwise, are without obligation and do not bind it as such. An agreement is not concluded between RESORTECS and the Customer until after the order confirmation or a written agreement has been signed by an authorized representative of RESORTECS, or as a result of the fact that RESORTECS performs the agreement.
- The order confirmation must be checked by the Customer in any event. If the order confirmation has not been drawn up in accordance with the order, the Customer will be required to notify RESORTECS within 48 hours after dispatch of the order confirmation. Thereafter, any complaints concerning deliveries in accordance with the order confirmation are no longer accepted and the delivery will be deemed to have been carried out in accordance with the order.
- Natural persons who place an order on behalf of the Customer are always considered to have been sufficiently authorized by the Customer and warrants performance by the Customer.
- In the event Offers are drawn up on the basis of information provided by or on behalf of the Customer, RESORTECS has the right at all times to assume the correctness and completeness of this information. If it later becomes clear that this information was incorrect or incomplete, RESORTECS will have the right among other things to unilaterally adjust the indicated prices without the Customer having the right to dissolve or terminate the agreement. The adjustment is charged without prior notification of the Customer.
3. Ownership and right of use concerning information provided during the precontractual phase
- The information referred to in article 3.1 is confidential and exclusively intended to be used by the party that requested the information and to whom it was addressed with a view to the evaluation of a possible cooperation. Any other use as well as full or partial release or forwarding to third parties as well as the full or partial printing or reproduction of this information is prohibited unless and to the extent expressly agreed otherwise in writing in advance.
- Unless expressly agreed otherwise in writing and signed by an authorized representative of RESORTECS, delivery will take place EXW (Ex Works), the factory where the order was placed, Incoterms® 2020.
- The delivery terms stated by RESORTECS are merely indicative unless expressly agreed otherwise in writing. The Customer expressly forsakes the right to claim compensation, claim dissolution or transfer of possession, unless late delivery would be unreasonable with the exception of the cases referred to in article 13 Impracticability of the assignment – force majeure.
- 8, the Customer accepts a difference of 10% above or below the quantity of goods ordered when compared to the quantity of goods delivered by RESORTECS, irrespective of whether this is confirmed in an order confirmation.
- The partitions of partial deliveries will be issued in such a manner that RESORTECS is able to perform the contract.
- The Customer is required upon receival the goods to immediately, inspect them and check the quantities within 24 hours after receipt, whereafter the quantities are deemed to have been delivered in accordance with the agreement.
5. Delivery and invoicing to third parties
- In deviation from the matters set out above, the Customer may request RESORTECS to deliver and invoice to a certain third party, including without limitation companies affiliated with the Customer (as defined in article 1:20 of the Belgian Companies and Associations Code) and its subcontractors. The relevant delivery and invoicing to this third party takes place in any event exclusively for the risk of the Customer, in which case the Customer is liable for all debts of that third party to RESORTECS that concern the performance of the agreement between RESORTECS and the Customer.
- All complaints submitted by the Customer with respect to the goods must state the identification number and order number attached to the goods or their packaging. If the identification number is not stated, the complaint will be deemed to not have been received and does not in any way entitle to any suspension or interruption of relevant terms.
- Complaints concerning any visible defects are only valid if they were submitted by the Customer in writing within 48 hours after receipt of the goods and the goods have not (i) undergone manipulation or (ii) been taken into use.
- RESORTECS guarantees that the goods are free of hidden defects at the time of delivery. This guarantee is limited in any event to a period of 6 months after delivery. Defects that are discovered after delivery are assumed, subject to evidence to the contrary (to be delivered by the Customer), not to have existed at the moment of delivery and/or to be the result of incorrect manipulation by the Customer. Defects that are not reported to RESORTECS in writing within this six month period will irrevocably and irrefutably be deemed not to have existed at the time of delivery.
- RESORTECS reserves the right to replace the defective goods as a result of which all further claims of the Customer lapse in case of both visible and invisible defects.
- Returns can only take place with the written approval of RESORTECS and does not comprise an admission of fault or negligence on the part of RESORTECS. Goods must be sent back in their original packaging free from freight and costs, which shall be borne by the Customer.
- With the exception of deceit and intentional error, RESORTECS is not liable for or obliged to compensate immaterial, indirect or consequential losses, including without limitation lost profit, lost sales, lost income, production limitations, administrative and personnel expenses, an increase in the general costs, loss of customers, reputational damage or claims from third parties, and RESORTECS’ contractual and non-contractual liability towards the Customer is in any event always limited to the amounts paid by Customer, excluding VAT and other taxes.
7. Deviations with respect to the goods themselves
- Deviations between on the one hand the goods delivered and on the other hand goods, samples, demonstration models, documentation or images that were delivered previously, including without limitation samples delivered to carry out pilot tests, cannot constitute a ground for rejection, discount, dissolution of the agreement or compensation if they are of minor importance, or if the goods delivered constitute an improvement.
- Deviations between on the one hand the goods delivered and on the other hand the original design, drawing, copy or model cannot constitute a ground for rejection, discount, dissolution of the agreement or compensation if they are of minor importance, or if the goods delivered constitute an improvement.
- When assessing the question whether deviations should be considered minor when compared to the total of the work, a representative random sample from the goods delivered and goods, samples, demonstration models, documentation or images that were delivered previously is taken into account.
- Deviations that have no or a subordinate influence on the value in use of the goods taking all circumstances into consideration, are always considered to be deviations of minor importance.
- Deviations in the colour of the goods delivered by RESORTECS are always considered to be deviations of minor importance if the Customer did not indicate exact colour codes in writing together with its order.
- Without prejudice to article 4.3, the Customer accepts the following tolerances as regards the goods delivered: a tolerance of 1% concerning the length of the thread that was delivered and invoiced. This tolerance is not considered to be a defect on the part of RESORTECS and cannot be set off or charged.
- If RESORTECS considers such necessary, the goods will be packaged by RESORTECS in accordance with the practices generally applied within the sector, unless RESORTECS has explicitly agreed to specific requirements concerning the required packaging units, the required characteristics or the nature of the packaging, and the Customer has provided information concerning the requested packaging and handling methods of the packaged goods.
- RESORTECS reserves the right to charge the Customer a deposit per item of return-packaging delivered.
- When returning the return-packaging, the Customer receives a credit note concerning the packaging charged while deducting any costs resulting from damage.
- Unless stated otherwise in writing, all prices are exclusive of VAT and all other taxes, charges and/or levies. These taxes, charges and/or levies that concern the goods delivered or the transport thereof are fully for the account of the Customer.
- Half the total sum payable under an invoice will become payable within five (5) business days of receiving an order confirmation of RESORTECS.
- RESORTECS expressly reserves the right to increase the price agreed with the Customer if during the term of the agreement one or more costs undergo an increase (including without limitation the prices of freight, insurance rates, production costs, currency fluctuations, prices of raw materials, energy prices and wage costs), irrespective of the cause of this increase.
- The invoices are payable NET 30 days as of the invoice data, via wire transfer, without deductions, to RESORTECS’ bank account and in the currency stated on the invoice, unless other payment conditions were agreed expressly in writing between the Customer and RESORTECS. Any banking costs or other costs related to the payment, including without limitation the cost of currency exchanges will be borne by the Customer.
- As from the due date, default interest will be due on the invoice by operation of law and without notice of default, which interest will be equal to the statutory interest rate as determined in article 5 of the Belgian act of 2 August 2002 plus 6 percentage points. Additionally a flat rate indemnity of 10% of the price of the Order is due, with a minimum of €500,00, which shall be payable automatically and without notice, notwithstanding RESORTECS’ right to prove and claim its real damages. RESORTECS has the right at all times to claim back from the Customer the collection costs that have become payable as a result of late payment by the Customer.
- In case of non-payment of an invoice on the due date, all claims against the Customer that have not become due, irrespective of the agreement to which they pertain, become immediately due and payable automatically and without notice of default. If instalments were given or bills of exchange were signed, either in this agreement or in another agreement, all payable amounts of any agreement whatsoever, will automatically be due and payable immediately and without notice of default if one instalment was not paid or if one bill of exchange was not paid on the due date.
- Bills of exchange or securities that were accepted do not result in a breach of these General Conditions of Sale nor result in novation of the debt.
- The invoice date applies as delivery date subject to evidence to the contrary to be delivered by the Customer.
- If the Customer fails to comply with its obligations, RESORTECS reserves the right to suspend or cancel each performance of an order or all deliveries, also in the event a fixed delivery time has been agreed, without losing the right to payment and without prejudice to the higher stipulated compensation and default interest. Such suspension or dissolution takes place automatically and without notice of default and will be notified to the Customer by means of a letter. Any advance payments remain property of RESORTECS.
- Complaints about invoices must be notified to RESORTECS in writing within 8 days after receipt of the invoice after which the invoice will irrefutably and irrevocably be deemed accepted by the Customer.
- RESORTECS always has the right, before starting performance of the order or before delivery or continuing the delivery or the performance of the order, to demand a full advance payment, a financial escrow of the full payment or another form of security that is sufficient in the opinion of RESORTECS for compliance with the Customer’s payment obligations. Refusal on the part of the Customer to pay the advance payment that has been requested or to provide the security that has been demanded entitles RESORTECS to suspend or dissolve the agreement, without prejudice to RESORTECS’ right to claim for compensation of costs and lost profit. Such dissolution takes place automatically and without notice of default and will be notified to the Customer by means of a letter. Any advance payments remain the property of RESORTECS.
12. Retention of title
- The ownership of the delivered goods shall only be transferred to Customer upon performance by Customer of all its obligations under an agreement, including without limitation, the payment of the price of the order, and where applicable any costs, interests and damages. Notwithstanding the foregoing, Customer shall bear the risk of the loss or destruction of the delivered goods from the moment of delivery, in accordance with article 4.
- Until the moment of transfer of ownership in accordance with article 4, Customer shall (i) be prohibited to sell, use as payment, pawn or use as collateral the delivered goods; and (ii) clearly and visibly mark that the goods remain the sole property of RESORTECS; and (iii) notify RESORTECS immediately via registered letter and with copy-email to email@example.com when a third party seizes the delivered Product.
- Customer shall take all due care in relation to the delivered goods still under ownership of RESORTECS and store these in an adequate manner in accordance with the highest safety and security standards and requirements common in the sector and maintain their pristine condition. In case the delivered goods still under ownership of RESORTECS are stored at a third party’s premises, Customer shall notify RESORTECS via email to firstname.lastname@example.org and shall disclose the identity of the owner of the storage space at RESORTECS simple request. Customer shall close and/or maintain an insurance policy that insures the delivered goods still under ownership of RESORTECS against all risks common in the sector.
13. Impracticability of the assignment – force majeure
- RESORTECS is not liable for a failure to perform any of their obligations under an agreement in case the performance of the obligation has become impossible due to an impediment beyond its control that it could not reasonably be expected to have taken into account at the time of the conclusion of the contract or to have avoided or overcome it or its consequences (“Force Majeure”). The performance of the agreement will be suspended for the duration of the Force Majeure.
- In case RESORTECS’ performance has become impossible due to Force Majeure, it will notify the Customer without undue delay and in any case within a reasonable time of the Force Majeure and its impact on RESORTECS’ ability to perform.
- RESORTECS will notify the Customer when the Force Majeure has ended, in which case the parties will resume performance of the agreement.
- Either party shall have the right to terminate an agreement of which the performance is hindered by Force Majeure via registered letter effective immediately (i) when Force Majeure has rendered performance permanently impossible; (ii) when the Force Majeure has lasted for longer than one (1) year; (iii) when the duration of the agreement would have ended if Force Majeure had not occurred.
- The Customer’s obligation towards RESORTECS comprises a payment obligation, which means that Force Majeure on the part of the Customer is excluded expressly.
14. Suspension and dissolution
- If the Customer fails to comply with one of its obligations (including payment), RESORTECS will have the right to dissolve the agreement, take back the goods for an amount of the payment that has fallen due, and thereafter sell the goods again. To this end the Customer authorizes RESORTECS and its employees, authorized representatives and agents irrevocably to enter all of the Customer’s sites and buildings, with or without vehicles, during normal business hours; this authorisation will continue to apply despite the termination of the contract for any reason whatsoever and does not prejudice RESORTECS’ other rights.
- The parties have agreed that in case of dissolution of the agreement on the basis of Customer’s fault or negligence, the compensation is fixed at 30% of the unpaid invoiced/attributed value, unless a higher loss can be proven.
15. Intellectual property
- With the exception of intentional errors, RESORTECS does not guarantee that the use and commercialization of the good does not infringe the intellectual property rights of third parties. The Customer bears the exclusive risk of the use and exploitation of the goods.
- Customer warrants and represents that he will attribute the creation of any products with the delivered goods to the use of the technology and product of RESORTECS in accordance with the RESORTECS Brand Book.
16. Advice, designs and materials
- Information and advice provided by RESORTECS, more in particular but without being limited thereto, in the area of materials, colours, manufacturing methods or design are merely general in nature and without obligation.
- RESORTECS does not accept responsibility for a design elaborated by or on behalf of the Customer, nor for any advice in connection with such designs. The Customer is solely responsible for any and all products created using the delivered goods and their functional suitability. Functional suitability is defined as the suitability of the material or format for the purpose for which it is intended according to the Customer’s design.
- indemnify and hold RESORTECS and its respective officers, directors, employees, agents, affiliates and (sub)contractors harmless from and against any and all claims, losses, costs, damage and expenses (including reasonable defense costs and other mutually agreed legal fees) which they may bear or incur as a result of any claim relating to, arising out of or in connection with (i) the Customer’s breach or the breach of its respective officers’, employees’, agents’, affiliates’ or (sub)contractor’s obligations under or in execution of its agreement with RESORTECS, (ii) its negligence or tort (iii) its representations or statements not specifically authorized by RESORTECS under the applicable agreement or otherwise authorized in writing, (iv) claims by any of the Customer’s officers, directors, (sub)contractors, affiliates, agents or employees, (v) Customer’s violation of any applicable law, regulation or order, or (vi) any other intentional act or omission Customer or any of its officers, directors, employees, agents, Affiliates or (sub)contractors committed.
- “Confidential Information” means all information including trade secrets, business, financial, contractual, marketing and/or technical information, including without limitation the contents of any agreement between RESORTECS and the Customer, in whatever form embodied, which has been or may be provided, or to which access is provided, regardless whether prior to or during this Agreement, by either party or its affiliates (“Discloser”) to the other party or its affiliates (“Recipient”) and which (i) is marked in writing or in equivalent form as confidential, proprietary, or other similar marking at the time of disclosure, (ii) when provided verbally or visually, is identified as confidential, proprietary or similarly at the time of disclosure and subsequently confirmed in writing to the Recipient within ten (10) calendar days of such disclosure, or (iii) should reasonably be considered as confidential given its nature or the circumstances pertaining to its provision. In any case the existence of any negotiations, discussions or pre-agreement between the parties shall be considered Confidential Information.
- Parties agree that all Confidential Information is proprietary to Discloser and Recipient does not receive any rights thereto, unless specifically otherwise agreed between the parties.
- Unless otherwise specifically agreed to in writing by the Discloser, the Recipient warrants and agrees to hold the Discloser’s Confidential Information confidential and to protect and safeguard the Discloser’s Confidential against any unauthorized use or disclosure using the same degree of care as Recipient accords to its own Confidential Information, but in no case less than reasonable care.
- Recipient shall not use or disclose, make accessible, publish, transfer, disseminate or provide in any way, whether directly or indirectly, Discloser’s Confidential information, unless in accordance with an agreement between Discloser and Recipient and only when strictly necessary for the performance of that agreement (“Purpose”).
- Parties warrant and represent that they shall not, nor instruct or permit any third party to, decompile, disassemble, reverse engineer or attempt to reconstruct, identify or discover any source code, underlying ideas, techniques, formulas or algorithms in Confidential Information by any means whatsoever, except as may be specifically authorized in advance by Discloser in writing.
- Recipient shall only provide the Confidential Information of Discloser to those Affiliates, officers, directors, agents, employees, subcontractors or advisors on a strict need-to-know basis in as far as is necessary for the Purpose.
- Each party warrants and represents that any Affiliates, officers, directors, agents, employees, subcontractors, advisors or any other parties to whom the other party’s Confidential Information is disclosed are bound by confidentiality obligations that are at least a strict as the confidentiality obligations imposed by these General Conditions of Sale. Each party accepts that they shall be liable for any failure of said Affiliates, officers, directors, agents, employees, subcontractors, advisors or other parties to observe those obligations.
- Recipient shall not reproduce or copy any of Discloser’s Confidential Information except to the extent necessary for the Purpose.
- Recipient shall promptly notify and assist the Discloser in case of a security breach, or breach of these General Conditions of sale or an agreement between Discloser and Recipient which has resulted in the unauthorized disclosure of any kind of Discloser’s Confidential Information.
- Recipient shall return to Discloser or destroy any Confidential Information received from Discloser and destroy any copies thereof within ten (10) business days after (i) the termination of this Agreement; or (ii) the simple request of the Discloser. However the Recipient will comply with the Discloser’s specific request to return instead of destroy Confidential Information, unless such request is unreasonable or exceedingly onerous. Notwithstanding, either party has the right to retain one copy of the Confidential Information for archival purposes.
- Within five (5) business days after the destruction of the Confidential Information and the copies thereof and at the simple request of the Discloser, the Recipient shall provide Discloser with a certificate of proper destruction.
- Each party acknowledges that any disclosure, use or misappropriation of Confidential Information in violation of these General Conditions of Sale would cause the Discloser irreparable harm for which there may be no adequate remedy at law. Accordingly, each party agrees that the other party shall be entitled to apply to any court of competent jurisdiction for injunctive relief and other forms of equitable relief, without prejudice to any remedies available to it at law or in equity.
- This article shall survive the termination of this Agreement for a duration of five (5) years. Notwithstanding, after this period the provisions set out in this article 5 shall remain in force regarding any trade secrets disclosed to the Recipient by the Discloser for as long as said trade secrets retain their secret character. For the sake of clarity, any violation of this article by Recipient shall not take away the secret character of any trade secrets disclosed to the Recipient by Discloser, unless such disclosure were to fall under any of the exceptions set out in articles 18.10 and 18.11 of these General Conditions of Sale.
19. Processing of personal data
20. Miscellaneous provisions
- These General Conditions of Sale and the rights and obligations that arise therefrom can be transferred to third parties by RESORTECS, whereafter RESORTECS is released from further compliance with its obligations.
- If one or more clauses from these General Conditions of Sale are declared fully or partially void or non-binding through judicial intervention, such will not have any impact on the validity of the other clauses or the validity of the entire General Conditions of Sale. If RESORTECS wishes to amend or replace the relevant clause(s), the amended or new clause must align as much as possible with the clause(s) that were declared void or non-binding.
- These General Conditions of Sale comprise the entire and full agreement between RESORTECS and the Customer and replace all other and previous oral agreements and/or written agreements that allegedly existed between them with respect to the same subject, with the exception of existing, specific written agreements between the Customer and RESORTECS.
- RESORTECS’ failure to claim strict compliance with the provisions of these General Conditions of Sale will not be considered to be any waiver or rejection thereof.
- The Customer will perform purchases in its own name and for its own account and it will implement these General Conditions of Sale as an independent trader towards RESORTECS. These General Conditions of Sale do not create an association, partnership or joint venture between RESORTECS and the Customer.
21. Applicable law & Competence
- These General Conditions of Sale and the commercial transactions following therefrom are subject to Belgian law to the express exclusion of its Conflict of Laws rules and the Vienna Sales Convention.
- The parties undertake to resolve all disputes, including those with respect to the validity, the interpretation or the implementation of these General Conditions of Sale or arising from commercial transactions, however named, in an amicable manner by means of mutual consultation. If an amicable settlement is not possible, all disputes, including those with respect to the validity, the interpretation or the implementation of these General Conditions of Sale or arising from commercial transactions, however named, are submitted to the exclusive jurisdiction of the courts of Brussels.
Alternatively, either Party has the right to submit any dispute to binding arbitration under the 2017 Arbitration Rules of the International Chamber of Commerce by an arbitral tribunal in accordance with those rules. The arbitral tribunal shall be composed of one arbitrator, selected in accordance with the 2017 Arbitration Rules of the International Chamber of Commerce. The seat of the arbitration shall be Brussels. The applicable rules shall be the law governing these General Conditions of Sale. The language to be used in the arbitral proceedings shall be English.
The arbitral award rendered by the arbitrator may be entered in and enforced by any court of competent jurisdiction. The arbitrator will in any case have discretion regarding discovery, and to award legal fees to the prevailing party.
The parties explicitly preclude any application for setting aside the arbitral award rendered in accordance with this article. Notwithstanding the foregoing either party may apply to any court of competent jurisdiction for injunctive relief.