Terms and conditions

TERMS & CONDITIONS OF NOVASOL N.V./S.A.

1.Purchase and Sale

CUSTOMER, irrevocably agrees to purchase from NOVASOL N.V./S.A. (“NOVASOL”), the products described on the order confirmation (the “Goods”), subject to the terms and conditions of this Order; and NOVASOL upon execution of this Order, agrees to sell the Goods to CUSTOMER;

2. Delivery

2.1. The Goods shall be delivered pursuant to the specific INCOTERMS 2010 term stipulated on the Order confirmation;

2.2. NOVASOL shall use reasonable effort to adhere to the Anticipated Delivery Date stated on the Order confirmation, but NOVASOL shall not be liable for any loss resulting from any delay in delivery (including, but not limited to, any loss of profit or business interruption), nor shall the CUSTOMER be entitled to cancel the Order by reason of failure to deliver by the Anticipated Delivery Date;

2.3. The CUSTOMER acknowledges that the Goods may be delivered in partial shipments, each deemed as a separate sale and default of NOVASOL in respect of any one or more shipments shall not entitle CUSTOMER to repudiate, terminate or rescind the Order in respect of other shipments;

3. Risk, Title and Security Interest

3.1. Risk of loss or damage to the Goods shall pass to CUSTOMER upon Delivery, which is determined in accordance with the INCOTERMS 2010 term stipulated on the Order confirmation;

3.2. The Goods shall remain the personal property of, and the title thereto shall remain exclusively with NOVASOL, unless and until NOVASOL receives all payments due for the Goods and in respect of the Order, including any additional payments due in respect of delivery. Until Delivery, CUSTOMER shall not remove or obscure any label or marking which may allow the Goods to be identified with NOVASOL. CUSTOMER, upon request of NOVASOL at any time and until such full payment is made, agrees to affix or permit NOVASOL to affix, in a permanent place on the Goods, labels supplied by NOVASOL identifying the Goods as property of NOVASOL, and shall not alter or remove any such label from the Goods. CUSTOMER irrevocably undertakes to comply with any formality required under applicable law and/or place of Delivery applicable law, in order to register the title retention of NOVASOL pursuant to the provisions hereunder;

3.3. Before NOVASOL has received full payment of the Price stipulated on the Order confirmation, CUSTOMER shall not sell, lease or otherwise dispose of the Goods, shall take proper care of the Goods and shall keep the Goods free and clear from any and all liens, pledges, security interests, encumbrances and rights of any third party, except those created by NOVASOL. CUSTOMER shall give NOVASOL immediate notice of any judicial process or encumbrance affecting the Goods and shall indemnify and hold NOVASOL harmless against any loss or damage caused thereby, including, without limitation, court costs, reasonable legal fees and expenses.

4. Non-conformity

4.1. All Goods are to be inspected within 24 hours of arrival of the carrier, and prior to unloading the Goods into CUSTOMER premises (“Inspection”). CUSTOMER shall have Inspection conducted, under supervision and responsibility of its quality control department, by a reputable firm verifying that the Goods conform to the specifications mentioned on the Order confirmation and/or any separate agreement, document or instrument attached hereto. In the absence of Inspection and/or upon delayed or insufficient Inspection and/or upon affirmative result of Inspection, CUSTOMER shall be deemed to have accepted the Goods and Delivery, and CUSTOMER shall have no right to reject the Goods and/or shall have no right of claim of whatever kind or sort;

4.2.  Claims for defective Goods, shortage or failures in shipment or Delivery, shall be deemed waived and released by CUSTOMER, unless made in writing within 5 days following Delivery, provided, however, that under no circumstances shall NOVASOL be liable (i) for consequential, indirect or other damages, losses, or expenses, in connection with such defective Goods, (ii) for shortage or failures in shipment or Delivery,  (iii) if the delivered Goods have been mixed with another product or (iv) by reason of the use of or inability to use Goods purchased for any purpose. In no case are Goods to be returned without first obtaining NOVASOL’s written approval. Goods must be securely packed to reach NOVASOL without damage;

4.3. In the event that following Inspection and NOVASOL verification NOVASOL concluded that the Goods are defective or nonconforming, NOVASOL (i) replace the defective or non-conforming Goods within reasonable time or (ii) authorise CUSTOMER to purchase replacement Goods, which shall be deemed the sole remedy available to the CUSTOMER. It is being understood that in case of replacement, each party undertakes to indemnify the other for any difference in price between the original and the replacement Goods. In such event CUSTOMER irrevocable undertakes to return the defective or nonconforming Goods to NOVASOL.

5. Payments and Net Prices

5.1. All Prices stated on the Orderconfirmation as per INCOTERMS 2010 , are net and do not include withholdings and other taxes, VAT, levies, duties, surcharges, customs or deductions of any nature whatsoever, which shall be paid by CUSTOMER;

5.2. Notwithstanding anything stipulated herein, CUSTOMER undertakes to pay in a timely fashion and shall indemnify and hold NOVASOL harmless against all duties, levies, taxes and other governmental charges of any kind and any interest or penalties thereon which may be levied, directly or indirectly, against the Goods or with respect to its ordering, purchasing, delivery, ownership, possession, use and return regardless of whether such taxes and fees are levied against CUSTOMER or NOVASOL;

5.3. CUSTOMER shall make payment in accordance with the terms stated on the Order confirmation and may not suspend its payment obligations or set-off or deduct any amount charged by NOVASOL for any reason whatsoever;

5.4. If CUSTOMER is in default in respect of the payment of any sum payable under this Order, then without the need for NOVASOL’s prior notice of default, and without prejudice to NOVASOL’s other rights and remedies, NOVASOL shall have any or all of the following rights, which CUSTOMER hereby irrevocably accepts and in respect of which CUSTOMER waives any claim; (a) all sums shall immediately become due and payable to NOVASOL, notwithstanding any credit conditions granted to CUSTOMER, (b) NOVASOL may delay or suspend delivery or cancel any or all Orders or contracts with CUSTOMER, (c) NOVASOL may retain any amount already paid to it by CUSTOMER and CUSTOMER acknowledges that such amount shall be regarded as partial liquidated damages of NOVASOL, and (d) NOVASOL may demand, and CUSTOMER irrevocably undertakes to provide, a satisfactory security for the payment of the Price or further deliveries;

5.5. If CUSTOMER fails to fulfil any payment obligations hereunder and/or in connection with his Order, NOVASOL may, at its discretion, in addition to all other remedies provided herein or by law, charge interest at the rate prescribed by the Belgian Act dd. 2 August 2002 on combating late payment in commercial transactions (implementing the EU Directive 2011/7)  on all overdue sums from the due date until the outstanding sums are fully paid without notice thereof. In addition, NOVASOL may charge all recovery costs reasonably incurred due to CUSTOMER’s late payment, with a minimum amount of EUR 150, which is due without prior notice;

5.6. CUSTOMER irrevocably waives any right of set-off, deduction or withholding for any reason whatsoever, against payment of the Price to NOVASOL.

6. Limited Warranty and Liability

6.1. NOVASOL warrants, subject to Conditions 6.2 to 6.6 of this Order, that (a) the Goods shall conform with the specification stated on the Order confirmation and (b) at the time of Delivery, the Goods shall be adequately contained, packed and labelled and conform to the statements made on any container, packaging or label;

6.2. This warranty applies only if (a) NOVASOL has received a written notice from CUSTOMER giving details of the defective or non conformity of the Goods pursuant to Condition 4, (b) NOVASOL has been afforded a reasonable opportunity to inspect the Goods in question, (c) in cases of non conformity of quality or quantity of the Goods delivered, CUSTOMER has provided together with its notice all pertinent details and survey report by a reputable and recognised licensed surveyor, and (d) CUSTOMER has provided, at its expense, all assistance and support necessary for NOVASOL to fulfil its obligations under this warranty;

6.3. In case a defect that could not have been detected by the Inspection is subsequently detected in the Goods, the warranty of NOVASOL shall be limited to 6 months after Delivery, provided that the Goods have not been mixed with another product and that CUSTOMER proves that the defect existed before Delivery;

6.4. Except for the express warranty under condition 6.1, NOVASOL, its affiliates, suppliers, licensors or manufacturers give no other warranties, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement, and the provisions of or failure to provide support services.

6.5. To the maximum extent permitted by applicable law, in no event shall NOVASOL, its affiliates, suppliers, licensors or manufacturers be liable, in contract or in tort, for any special, incidental, indirect loss, cost or expense, including, but not limited to loss of business profits, business interruption, loss of information, loss of use, loss of or damage to data or records, damage to goodwill, and all other consequential or incidental damages (other than liability for death or personal injury resulting from NOVASOL’s fault) incurred or that may be incurred by CUSTOMER or CUSTOMER’s clientele arising from the Goods or non delivery of the Goods or non conformity of the Goods or otherwise;

6.6. Notwithstanding anything herein to the contrary, NOVASOL’s liability shall not exceed the difference between the value of the respective defective, non-conform or nondelivered Goods at the time of delivery and the price attributed to them on the Order confirmation.

7. Termination and Suspension

7.1. Without prejudice to NOVASOL’s other rights and remedies, NOVASOL is entitled, at its sole discretion and without prior notice of default to CUSTOMER, to immediately suspend the performance of its obligations under this Order or terminate this Order, in whole or in part, by a written notice, if (a) CUSTOMER breaches one or more of its obligations under this Order and such breach is not cured within three days from the day on which the obligation has to be performed or (b) CUSTOMER becomes insolvent, there is any act of bankruptcy regarding CUSTOMER, or any application is filed or resolution passed for the bankruptcy, dissolution, liquidation or insolvency of CUSTOMER, or the appointment of a receiver over the assets of the CUSTOMER, in whole or in part, any equivalent proceeding takes place under the laws in which the CUSTOMER is incorporated, carries on businesses or has assets;

7.2. Under any of the circumstances described in Condition 7.1 and without the need for NOVASOL’s prior notice of default, all sums shall become immediately due and payable to NOVASOL, notwithstanding any credit conditions granted to CUSTOMER.

8. Insurance

Until title to the Goods has passed to CUSTOMER in accordance with Condition 3 above, Customer, at its own expense, shall maintain a standard “All Risk” property insurance with a reputable insurance company acceptable to NOVASOL, covering the Goods and, inter alia, the following risks: floods, earthquake, fire, storm, aircraft etc, for an amount of at least the NOVASOL’s list price of the Goods. Such insurance shall name NOVASOL as beneficiary in respect of the Goods. The aforesaid insurance shall be primary cover, and in no event shall any insurance of NOVASOL be called upon to contribute to any loss relating to or arising out of the Order. The insurance shall be in effect and shall be evidenced by a certificate of insurance with all necessary endorsements as required pursuant to this Condition 8 delivered to NOVASOL on or prior to the Anticipated Delivery Date (as defined on the Order confirmation). The insurance shall provide for at least thirty (30) days’ prior written notice to NOVASOL in the event of any cancellation, non-renewal or material change in coverage, and upon request by NOVASOL, CUSTOMER shall provide a copy of any and all endorsements or other documentation relating to such insurance policies. Should CUSTOMER, at any time until transfer of title, be without sufficient insurance, as determined by NOVASOL in accordance with the provisions of this Condition 8, CUSTOMER appoints NOVASOL as its agent to obtain such coverage, and undertakes to pay to NOVASOL the entire cost of such coverage;

9. Miscellaneous

9.1. Weight & Quantity.

CUSTOMER acknowledges that the weight indicated in the Order confirmation shall be conclusive and binding upon measurement made at shipping point. Quantity of Goods shall be deemed conclusive and binding as indicated in the respective Bill of Lading and/or weight bill attached to this Order pursuant to confirmation issued by tank installation or appointed Surveyor at loading point;

9.2.   Storage & Finance Fee.

Without derogating from any other rights of NOVASOL herein, CUSTOMER irrevocably undertakes to indemnify NOVASOL for any and all costs and expenses incurred by NOVASOL relating to and/or connected with storage of Goods after Anticipated Date of Delivery and in the event that CUSTOMER did not take Delivery, in whole or in part, of the Goods, which such obligation to reimburse NOVASOL shall not be less than EUR 9 per metric ton;

9.3. FCA Deliveries.

CUSTOMER acknowledges that its lifting from NOVASOL’s tank at or below 15 metric ton, shall be invoiced with a surcharge of EUR 11 per metric ton, calculated pro-rata on the difference between the quantity actually lifted and 15 metric ton.

9.4. Allowed Discharge Time.

CUSTOMER acknowledges that for DAP and/or DDP deliveries, a two hours discharge time is free of charge. Discharge time starts on arrival of truck at destination. Following such initial two hours, CUSTOMER shall pay NOVASOL a demurrage fee of EUR 45 per hour;

9.5.  No Assignment

Customer may not assign any of its rights or obligations hereunder to any party. NOVASOL may delegate or assign any of its duties hereunder to any party that NOVASOL considers qualified to perform that duty;

9.6. Force Majeure.

NOVASOL shall not be liable for any delay or failure in the performance of its obligations under this Order, when such delay or failure is caused in whole or in part by circumstances beyond its reasonable control or force majeure preventing or hindering performance;

9.7. Confidentiality.

CUSTOMER shall keep confidential and not disclose to any other party all information, data, suppliers name or otherwise received from NOVASOL and undertakes to use such information and data solely in connection with the purpose of this Order. CUSTOMER shall not inform third parties of the contents of this Order, including the prices mentioned herein, without the prior written approval of NOVASOL.

9.8. Conflict or Inconsistency

In the event of any conflict or inconsistency between the terms and conditions of this Order and any terms or conditions set forth in any invoice, annex or other document relating to the transactions contemplated by this Order, the terms and conditions set forth in this Order shall prevail; No departure or amendment to the terms and conditions set forth in this Order shall be binding on NOVASOL unless it was expressly accepted in writing;

9.9. No Waiver of Rights

NOVASOL’s failure at any time to require strict performance by Customer shall not constitute waiver of or diminish NOVASOL’s right to demand strict compliance with any provision of this Order. Waiver by NOVASOL of any default shall not constitute waiver of any other default. No rights or remedies referred to herein shall be exclusive, but shall be cumulative and in addition to any other right or remedy set forth herein or by law;

9.10. Notices

Any notice required or permitted hereunder will be deemed duly given if sent by registered airmail or email with confirmation of receipt to the addresses of the parties stated in the Order confirmation;

9.11. Sole Agreement

This Order represents the sole and entire agreement and understanding between the parties and supersedes and replaces all previous contracts or understandings, written or oral, with respect to the Unit[VML1] [f2] .  No amendment of the terms hereof will be binding unless signed by Customer and by NOVASOL;

9.12. Proper Law and Jurisdiction.
The laws of Belgium shall govern this Order and the conditions stipulated herein.  CUSTOMER expressly disclaims the application of the United Nations Convention on the International Sale of Goods to this Order. All disputes in connection with this Order and the conditions stipulated herein shall be subject to the exclusive jurisdiction of the competent courts of Brussels, Belgium, unless NOVASOL decides to act in another competent jurisdiction based on the domicile, business premises or location of assets of CUSTOMER, to safeguard any of its rights, including, but not limited to, re-possession of Goods or enforcing title retention or otherwise.