GENERAL TERMS AND CONDITIONS OF SALE
1. GENERAL
1.1. These general terms and conditions of sale (“Conditions”) apply to all offers and quotes made
by PENNE, to each purchase order for the sale of goods accepted by PENNE, to any sales agreement
concluded between PENNE and its customer (“Customer”) and to all invoices issued by PENNE, without
prejudice to clause 1.4. For purposes of the Conditions, “PENNE” means PENNE NV (Wijngaardveld 32,
9300 Aalst, Belgium, registered with the Belgian Crossroads Bank of Enterprises under number
0412.652.648) and/or any of its affiliated companies. The object(s) to be supplied under these Conditions
is (are) hereinafter referred to as the “good” or “goods”.
1.2. Customer shall be provided with a copy of PENNE’s current Conditions together with or
following the offer from PENNE and Customer is regarded as having accepted these, without any
reservation, in the absence of explicit written objection within the 5 days following receipt thereof.
Stipulations that deviate from the Conditions may only be invoked by Customer if and insofar as these
have been accepted by PENNE in writing.
1.3. The applicability of any terms and conditions of Customer is hereby explicitly rejected,
notwithstanding any referral thereto on an order or other document.
1.4. In case of ambiguity, inconsistency or conflict between the Conditions and any other
applicable written agreements between PENNE and Customer, the following order of priority shall apply:
(i) any specific conditions to which the parties have agreed in writing; (ii) the offer of Penne; (iii) the
Conditions. Together with any such written agreements, the Conditions constitute the entire
understanding between the parties with respect to the subject matter thereof.
2. OFFERS AND ORDERS
2.1. All price lists and offers of PENNE are without obligation, are intended for information
purposes only, and are not binding for PENNE. PENNE is bound only by an order placed by Customer
insofar PENNE has accepted such order in writing.
2.2. Any accepted order is binding and irrevocable for Customer. Customer shall not have the right
to increase, decrease, alter or cancel an accepted order unless upon prior written consent of PENNE.
2.3. Customer is required to enable PENNE to execute the delivery of goods without restrictions.
With respect to each order, Customer’s responsibilities include: (i) ensuring the accuracy of the order; (ii)
providing PENNE with any information which is necessary in order to enable PENNE to fulfil the order
and, as the case may be, to comply with all labelling and other applicable legal requirements, including,
without limitation, technical, maintenance and functional specifications on the basis of which goods must
be manufactured; and (iii) as the case may be, obtaining any necessary import/export licences,
certificates of origin or other requisite documents, and paying all applicable import/export customs, duties
and taxes.
3. DRAWINGS, MOULDS AND PRODUCT INFORMATION
3.1. Information included in catalogues, brochures, illustrations, schemes, technical drawings
and/or other product information provided or made available by PENNE is only binding for PENNE if and
insofar this is explicitly agreed in writing. Such information and documents are provided only if explicitly
agreed with Customer.
3.2. Any study, specification, documentation, description, plan and the like prepared by PENNE or
provided by PENNE, is and remains the exclusive property of PENNE. Customer shall only use such
information/documents for the specific purposes agreed with PENNE and shall in no event, without the
prior written consent of PENNE, copy, reproduce, transmit or communicate the information to third
parties.
3.3. PENNE is entitled to destroy any information, documents, samples, technical drawings,
moulds and the like provided by Customer, if these have not been used to manufacture goods for a
period of at least 1 year, without Customer being entitled to any compensation in such event.
4. ACCEPTANCE TESTING
4.1. Customer shall cooperate without delay with any acceptance testing announced by PENNE
at least 48 hours in advance. If Customer does not cooperate or not at the announced time the relevant
goods shall be deemed accepted by Customer without reservation.
4.2. PENNE is entitled to a compensation from Customer for damage and/or costs incurred as a
result of Customer’s refusal of or delay in cooperation with the acceptance testing.
4.3. PENNE shall be given the opportunity to remedy any shortcomings or defects that emerge
through acceptance testing before the goods can be rejected by Customer.
5. DELIVERY
5.1. Delivery times are purely indicative and non-binding for PENNE. Delays in delivery cannot
cause any liability on the part of PENNE nor be ground for cancellation of the order. PENNE retains the
right to make partial deliveries, which then constitute partial sales. The partial delivery of an order may
not serve as justification for the refusal to pay for the goods delivered.
5.2. The goods shall be delivered EXW at Wijngaardveld 32, 9300 Aalst, Belgium (as defined in
the latest edition of the International Chamber of Commerce’s International Commercial Terms at the
time of acceptance of an order by PENNE).
6. PRICE AND INVOICES
6.1. The order will be invoiced at the prices and conditions indicated in the purchase order or in
the price lists communicated by PENNE, without prejudice to clause 2.1. Unless otherwise agreed in
writing, the prices are net prices, excluding taxes and costs, such as VAT, transportation costs and costs
for packaging.
6.2. The prices are based on the costs for PENNE at the moment of the offer or acceptance of an
order by PENNE. If the costs subsequently increase, PENNE has the right to inform Customer in writing
of the corresponding price increase. If Customer fails to withdraw the relevant (part of the) order within 5
days following such written notice, the new prices shall be deemed accepted by Customer without
reservation.
6.3. Offers and prices from PENNE mentioning “tool cost sharing” include 50 percent of the total
cost of the tools required to manufacture the goods. In case Customer would like to purchase said tools,
the prices will increase with an additional amount corresponding to 50 percent of the cost of tools.
6.4. Unless agreed otherwise in writing, the invoices for tools are payable upon receipt and
invoices for parts are payable within 30 days after the invoice date. All invoices are payable to the bank
account communicated by PENNE. Each invoice is considered as accepted in the absence of protest by
registered letter within 10 days after the invoice date. If there is a dispute with respect to any amount
claimed to be due hereunder, any portion that is not disputed shall be paid by Customer. Any such partial
payment shall not, however, constitute a waiver by PENNE of such payment of any other rights.
6.5. Customer waives any right to set off amounts owed between the parties.
6.6. The payment of invoices is an essential obligation for Customer. In the absence of (timely and
full) payment by the due date, Customer is in default by operation of law and without notice of default
being necessary. All other claims of PENNE on Customer are also immediately due, without prior notice
of default being necessary. With effect from the day on which Customer is in default, it owes PENNE, by
operation of law and without prior notice of default being necessary, late payment interest of 1 % per
month or part thereof during which the default persists, plus a fixed compensation of 10% of the invoiced
amount, with a minimum of EUR 150, without prejudice to PENNE’s right to claim compensation of all
damage it has suffered as a result of Customer’s default. All collection charges shall be reimbursed by
Customer.
6.7. Non-payment or late payment also grants PENNE by operation of law and without prior written
notice of default the right to suspend its performance until full payment and/or cancel (part of) the order,
without prejudice to PENNE’s right to compensation of all damage it has suffered as a result of
Customer’s default. In the case of cancellation due to actions of Customer, Customer shall pay damage
compensation of 12% of the total order price, without prejudice to PENNE’s right to claim compensation
of all damage it has suffered as a result of Customer’s default.
6.8. The foregoing clause 6.7 applies in the same way if Customer’s creditworthiness declines to
such an extent that it causes reasonable doubts as to Customer’s creditworthiness, regardless of what
act or circumstance is at the root of this decline.
7. RETENTION OF TITLE
7.1. The delivered goods remain the property of PENNE until full payment of the principal, interest,
costs and possible damages. Until the moment of full payment, Customer shall keep the delivered goods
as PENNE’s fiduciary agent and will keep the goods separate from its own goods and those of third
parties, properly stored, protected, insured for their full replacement value and identified as PENNE’s
property. Customer agrees that PENNE may enter any buildings where the goods are located to retake
possession of the delivered goods and all costs incurred by PENNE to retake possession shall be borne
by Customer. If the delivered goods were lost or resold, the amounts received by Customer in
consideration of such resale or loss are to be transferred to PENNE. In the event that Customer
processes or uses the delivered goods for the assembly of products, PENNE will have co-ownership,
title and rights on the end-product in proportion of the value of the delivered goods processed or mixed
in relation to the end-product.
7.2. Retention of title does not affect the transfer of risk to Customer in accordance with clause
5.2.
8. WARRANTY AND DEFECTS
8.1. Unless otherwise agreed, PENNE warrants that the goods supplied correspond to its
specifications explicitly confirmed in the purchase order. PENNE makes no other representation or
warranty in connection with the delivered goods or any part thereof and any other guarantee of PENNE
regarding the goods supplied (of any nature) is excluded to the fullest extent permitted by applicable law.
Any technical advice provided by PENNE, before and/or during the use of the goods, is given in good
faith but without any warranty from PENNE. The processing and use of the goods are undertaken solely
at Customer’s risk and responsibility, and following any such processing or use, Customer shall no longer
be entitled to claim any non-compliance with the warranty described above.
8.2. Upon delivery, Customer must check whether the delivered goods exhibit visible damage or
defects. Each complaint concerning visible defects, missing goods or a non-compliant delivery must be
communicated to PENNE by registered letter within 5 days after receipt of the goods, with reference to
the invoice number or the purchase order and all supporting evidence. All complaints for hidden defects
that are not the result of force majeure, of an intervention by Customer or by third parties, or due to
normal wear and tear, must be communicated to PENNE by registered letter immediately after discovery
of the defect, and in any case within 1 month after delivery of the goods. After these periods for the
communication of, respectively, visible or hidden defects have expired, the goods are deemed accepted
without reservation. Late or incomplete complaints are inadmissible. Complaints do not suspend
Customer’s payment obligation. Possible return of the goods shall only take place with the prior, written
confirmation of PENNE.
8.3. The colouring, shading and/or aesthetic aspect of the goods may never be a reason to refuse
them.
9. LIABILITY
9.1. To the fullest extent permitted by applicable law and regardless of the nature of the claim,
PENNE’s contractual and extra-contractual liability shall be limited to the replacement or reimbursement
of the price, of the goods that are defective or missing.
9.2. PENNE (including its appointees, representatives and/or employees) is only responsible for
damage caused due to non-compliance with its contractual obligations, if and insofar as this damage is
caused by its fraud, intentional fault or gross negligence.
9.3. Except in the event of damage caused by PENNE’s fraud or its intentional fault, the maximum
liability of PENNE is limited to the invoice value of Customer’s order, or to the part of the order that the
liability concerns.
9.4. In any event, PENNE may not be held liable for indirect damage, lost profit, interruption of
operations, missed savings or damage to third parties.
9.5. Any claim towards PENNE must be notified to PENNE as soon as practicable and no longer
than 28 days after Customer became aware, or should have become aware, of the event or
circumstances giving rise to the claim, on pain of being null and void.
10. FORCE MAJEURE / HARDSHIP
10.1. Either party shall be entitled to suspend performance of its obligations under the contract to
the extent that such performance is impeded or made unreasonably onerous by an event of force
majeure, including, without limitation, any of the following circumstances: explosion, fire or flood, protest,
riot, civil commotion, war, acts of terrorism, pandemic, government action, lock-outs, strikes or other
industrial actions, restrictions in the use of power, import and export restrictions, embargoes, damage of
equipment, late delivery of the goods by suppliers or sub-contractors, prolonged unavailability or absence
of qualified personnel, as well as any defects or delays in deliveries by sub-contractors caused by any
such circumstance referred to in this clause.
10.2. The party claiming to be affected by force majeure shall notify the other party in writing without
delay on the intervention and on the cessation of such circumstance. If force majeure prevents Customer
from fulfilling his obligations, he shall compensate PENNE for expenses incurred in securing and
protecting the goods.
10.3. Regardless of what might otherwise follow from these Conditions, either party shall be entitled
to terminate the relevant order by notice in writing to the other party if performance of thereof is
suspended under clause 10 for more than 6 months.
11. INTELLECTUAL PROPERTY
11.1. All intellectual property rights in relation to the goods and any related materials remain the
exclusive property of PENNE and are never transferred to Customer, unless explicitly agreed otherwise.
Customer shall notify PENNE of (i) any actual, threatened or suspected infringement of PENNE’s
intellectual property rights of which Customer becomes aware, and (ii) any claim by any third party of
which it becomes aware alleging that the import or sale of the goods infringes any rights of any third
party.
11.2. Customer is not authorized to use the trade name or any brand name of PENNE. PENNE
remains the exclusive owner of any intellectual property right relating to the manufacturing process
employed by PENNE or goods sold by PENNE.
12. EXPORT REGULATION AND CONTROLS
12.1. Customer acknowledges that the goods to be supplied could be subject to national and/or
foreign statutory provisions and regulations for export controls, and may not be sold, leased out or
otherwise transferred or used for purposes other than those agreed without export or re-export permits
from the competent authorities. Customer declares it shall adhere to such provisions and regulations.
Customer is aware that certain provisions and regulations may change and thereafter still apply to order,
as formulated at the time the order was accepted.
12.2. The goods supplied may not in any way whatsoever directly or indirectly be used in connection
with the design, production, storage or use of chemical, biological or nuclear weapons or transport
systems. The goods supplied may not be used for military or nuclear applications without PENNE’s prior
written permission.
13. TERMINATION
13.1. PENNE has the right to terminate any order or other agreement with Customer at any time,
with immediate effect, without judicial authorisation, without preliminary notice of default and without
payment of any damage compensation, by giving written notice, in the following cases: (i) if Customer,
despite a written notice of default in which a period of at least 15 calendar days is observed, remains in
default with respect to the (timely) fulfilment of one or more obligations resulting from any order or other
agreement, (ii) in the case of suspension of payment or (the application for) bankruptcy protection, (iii) in
the case of liquidation or discontinuation of the activities of Customer, (iv) if Customer engages in an act
of fraud, (v) if (a part of) the assets of Customer are seized, or (vi) in the event of a change of control
over Customer. Customer shall inform PENNE of any such change or acquisition of control, without
undue delay.
13.2. In case of termination and without prejudice to any other remedies, (i) PENNE reserves the
right to claim compensation for all costs, interest and damage (including, without limitation, loss of profit)
it has and/or could incur(red), (ii) all claims of PENNE against Customer are immediately due and
payable, (iii) PENNE may suspend or postpone its obligations relating to other orders or other
agreements between parties, and (iv) Customer must purchase any stock of materials purchased by
PENNE for the purpose of any order issued by Customer.
14. MISCELLANEOUS
14.1. If a (part of a) stipulation of the Conditions would be invalid or unenforceable, this shall not
affect the validity and enforceability of the other stipulations of the Conditions. In such a case, PENNE
and Customer shall negotiate in good faith, and the invalid or unenforceable stipulation will be replaced
by a legally valid and enforceable stipulation that fits as closely as possible the objective and the intent
of the original stipulation.
14.2. No amendment to the Conditions shall be effective unless it is made in writing and signed by
duly authorised representatives of each party. Except as otherwise provided herein, PENNE shall not be
deemed to have waived any rights arising out of the Conditions or out of any breach of the Conditions
unless PENNE executes a waiver in writing. If PENNE waives a right arising out of the Conditions or out
of any breach of the Conditions, such waiver shall not be construed to constitute a waiver of any other
rights.
14.3. Except as otherwise provided herein, Customer may not assign all or part of its rights or
obligations pursuant to the Conditions to a third party, without the prior written consent of PENNE.
14.4. Both parties shall treat confidential information and trade secrets from the other party with the
same care observed for their own confidential information and trade secrets and shall not pass on this
information to third parties without the other party’s prior written approval. This requirement extends
beyond termination of the order or other agreement with Customer by a period of 5 years.
15. APPLICABLE LAW AND JURISDICTION
15.1. The Conditions and all orders or other agreements to which the Conditions apply shall be
exclusively governed by and construed in accordance with Belgian law, with exclusion of the 1980 United
Nations Convention on Contracts for the International Sale of Goods.
15.2. All disputes between PENNE and Customer fall under the jurisdiction of the competent courts
of Brussels, Belgium.