For the purpose of these General Terms and Conditions of Sale and Supply (hereinafter the "Conditions"), the following terms shall have the meaning set forth below:
These Conditions shall apply to each order, sale and/or supply of Products/Services of Xenics to Customer. No other terms or conditions requested by the Customer are applicable, unless if explicitly accepted by Xenics in writing. A purchase order shall only be binding on Xenics upon Xenics' confirmation in writing of the order.
The price to be paid by the Customer for the Products and/or Services, is indicated in the order confirmation. Unless otherwise agreed upon, the prices are net, excluding all expenses and all taxes, fees or charges of any nature whatsoever, imposed currently or in the future by any federal, state, or other governmental authority upon or with respect to the sale, purchase, delivery, shipment, storage, processing, use or consumption of any of the Products and/or Services covered hereby. In the event Xenics is required to pay any such tax, fee or charge, Customer shall reimburse Xenics. All prices are in euro or in any other currency agreed between Buyer and Seller.
4. PAYMENT TERMS
All invoices are payable within fifteen (15) calendar days from the invoice date without any discount, suspension or set-off. If payment of any amount due is not effected as agreed upon, Xenics shall be entitled, without prejudice to any other rights, to charge, without any prior notice required, interest on any overdue amount until the day of settlement. Such interest shall be calculated at the then current interest rate applied by the European Central Bank in main refinancing operations plus seven (7) percent per year. All collection expenses incurred by Xenics are for the account of the Customer.
5. DELIVERY AND SHIPMENT
The Products and/or Services will be delivered Ex Works Xenics' premises in Belgium (per Incoterms 2010). Xenics will decide in its own discretion the manner of transportation and carrier. Any delivery schedule serves as an indication only and is based upon prompt receipt from Customer of all necessary information. Xenics shall use its reasonable efforts to deliver the Products and/or provide the Services according to the proposed time schedule. However, failure by Xenics to deliver within the agreed schedule, for whatever reason, shall not entitle Customer to terminate the agreement or to claim liquidated or other damages. Seller shall not be liable for delay in delivery or failure to perform the Services attributable to causes beyond its control or occasioned without its willful misconduct or gross negligence. In the event of any such delay or failure, the date of delivery shall be deferred for a period equal to the time lost by reason of the delay or failure.
6. TRANSFER OF RISK
All risk of loss or damage is transferred from Xenics to Customer upon delivery as described in section 5 above. Without prejudice to the Customer's obligation to pay on time and in accordance with the provisions detailed herein, title to the Products will remain with Xenics until Customer has fulfilled its financial obligations in connection with said Product(s).
7. INSPECTION AND ACCEPTANCE
Customer shall examine the Products promptly upon delivery thereof. Within twenty (20) calendar days of such delivery, Customer shall notify Xenics in writing of any complaint that the Customer may have concerning the Product delivered. If Seller has not received any notice of Buyer within said 20-day period, the Products will be deemed accepted.
(a) PRODUCT WARRANTY. Xenics warrants to Customer the Product delivered by Xenics hereunder shall be free from defects in material and workmanship when used under normal operation conditions for a period of maximum twenty-four (24) months following the delivery of the Product, except for Stirling Cooled engines for which it is twenty-four (24) months or 3000 operating hours, whichever comes first. Customer shall notify Xenics in writing of all defects not detectable at the time of the inspection as stated above despite all reasonable care ("hidden defects") no later than ten (10) calendar days following its detection. Failure to notify Xenics within the time periods stated above shall void the warranty. Xenics' maximum liability under this warranty is limited to the obligation to either repair, replace or, at its sole option, to credit Buyer's account up to the purchase price. Xenics shall not be liable under this warranty (i) for any defect caused by force majeure, (ii) for any defect caused by normal tear and wear, and (iii) where the Product is subjected to abnormal usage or where the defects are caused by accident, neglect, misuse, unauthorized alteration or other improper actions on the part of Customer or any third party.
(b) SERVICE WARRANTY. Xenics warrants the Services are provided in a professional manner, taking into account the actual status of knowledge in the field concerned for a period of sixty (60) days. Customer shall immediately notify Xenics in writing of any complaint that the Customer may have concerning the Services. Failure to notify Xenics within ten (10) days following the date of detection shall void the warranty. Xenics shall, at its sole discretion, either re-perform the affected Service or refund the Customer on a pro-rata basis, the Service fee paid for the affected Service. THE FOREGOING WARRANTY CONSTITUTES XENICS' ENTIRE WARRANTY AND IS EXCLUSIVE OF ALL OTHER WARRANTIES INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS.
9. LIMITATION OF LIABILITY
Xenics is not liable for any damage arising from improper use or incorrect maintenance of the Products. Xenics is not liable for any damage that occurs after modifications or repairs by or on behalf of Customer or any third party. Xenics' liability for the Products delivered by Xenics to Customer is in any event limited to the direct damages suffered by the Customer as a result of willful misconduct or gross negligence by Xenics or its employees. XENICS' LIABILITY OF ANY CLAIM OF ANY KIND, WHETHER BASED IN CONTRACT, IN TORT OR OTHERWISE FOR ANY EXPENSE, INJURY, LOSS OR DAMAGE ARISING OUT OF OR IN CONNECTION HERETO SHALL IN NO CASE EXCEED THE PRICE EFFECTIVELY PAID BY CUSTOMER FOR THE PRODUCTS/SERVICES WHICH GIVES RISE TO THE CLAIM. IN NO EVENT SHALL XENICS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY NATURE WHATSOEVER RESULTING FROM XENICS' PERFORMANCE OR FAILURE TO PERFORM OR THE PERFORMANCE OR USE OF THE PRODUCTS/SERVICES SOLD, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOSS OF USE AND LOSS OF GOODWILL.
10. INTELLECTUAL PROPERTY RIGHTS AND CONFIDENTIALITY
Except as required by law, Customer will not disclose to any third party, except to its own employees, on a need-to-know-basis, any information or data of a confidential nature disclosed by Xenics ("Confidential Information"), nor will it use such Confidential Information other than in furtherance of a business relationship with Xenics. Any permitted disclosure shall include the requirement that the person to whom such Confidential Information is disclosed shall be subject to the same obligations of non-disclosure and restricted use, as contained herein. All intellectual property rights in and to the Products are and remain the exclusive property of Xenics. No patent or other intellectual property right, title, or license is granted to Buyer, except as otherwise agreed.
11. GOVERNING LAW AND DISPUTE RESOLUTION
These Conditions shall be governed by and construed in accordance with the laws of Belgium. All disputes shall be exclusively settled by the courts of Leuven, Belgium.