GENERAL TERMS AND CONDITIONS OF SALE
1. DEFINITIONS
1.1 Goods : “Goods” means any wooden materials including logs and/or wooden materials and/or services which the Seller shall provide or supply according to the sale contract and/or any part or component included in the above-defined items.
1.2 Seller : “Seller” means ITS WOOD ASIA Ltd or any other affiliate.
1.3 Purchaser : “Purchaser” means the natural or legal person identified in the sale contract as the purchaser of the Goods.
1.4 Incoterms®: “Incoterms®” means the lasts revision of the International Commercial Terms as issued by the International Chamber of Commerce.
1.5 L/C: “L/C” means any letter of credit issued by the Seller and/or the Purchaser in relation to any sale of Goods.
1.6 UCP: “UCP” means the latest revision of the Uniform Customs and Practice for Documentary Credits as issued by the International Chamber of Commerce.
2. SCOPE OF THE GENERAL CONDITIONS OF SALE AND ACCEPTANCE
2.1 These General Conditions of Sale (hereinafter “the Conditions”) shall apply to any sale of Goods (including, for the avoidance of doubt, any purchase order of Purchaser accepted by Seller or any offer of Seller accepted by Purchaser) and related offers, purchase orders and ancillary contracts or documents, and shall prevail upon any general purchase conditions or similar deeds, whether general or particular, issued by the Purchaser before, at the same time or after these Conditions, regardless of their form.
2.2 Such Conditions can only be waived by application of the Particular Conditions referred to in the sale contract. Such derogation shall only apply to the relevant sale. The Purchaser may in no event take advantage of such particular waiver in connection of any other sale.
2.3 In the event of a discrepancy between the General and Particular Conditions of sale, the Particular Conditions of sale shall prevail.
2.4 In the event of continuing business relationships, these Conditions shall also apply to any future sale of Goods even if these Conditions are not explicitly referred to.
2.5 By placing any purchase order, accepting any sale offer or otherwise entering into a sale contract with the Seller, the Purchaser is deemed to have read and accepted these Conditions and to have waived its own particular and general terms and conditions, if any. The Purchaser acknowledges that, unless expressly confirmed in writing, no act taken by the Seller shall be construed as an acceptance of any particular and general purchase conditions of the Purchaser.
2.6 The Seller shall amend, modify or otherwise update these Conditions from time to time. The latest version shall always be available on the Seller website and shall be effective immediately upon publication and shall apply to any future sale of Goods entered into after the publication date.
3. OFFERS, QUOTATIONS AND ORDERS
3.1 Any offer and quotation of the Seller are, unless otherwise indicated in writing, binding during a period of 15 calendar days. The Purchaser shall return to the Seller any sale offer duly signed and stamped during the validity period of such purchase order.
3.2 Any order of the Purchaser, placed either orally or in writing, shall be considered as a binding offer to enter into a sale contract with the Seller, subject to the terms and conditions stipulated therein and the applicable Conditions.
3.3 Any sale contract of Goods including any ancillary agreements, supplements or modifications, shall be entered into only upon signature by the Purchaser and the Seller.
3.4 The Purchaser may neither cancel nor terminate any sale contract, including any purchase order accepted by the Seller, except with the written and express approval of the Seller.
3.5 Any sale contract entered into between the Seller and Purchaser shall oblige the Purchaser to comply with these Conditions and with the Particular Conditions as provided for on the sale contract.
4. PRICE, PAYMENT AND L/C
4.1 The unit prices described in the sale contract may vary according the qualitative and quantitative requirements or specifications. The prices compensate only the Goods as described in the sale contract to the exclusion of any other goods or services. The prices do not include any value added tax or any similar foreign tax, levy and duty, which are for the Purchaser account. The prices include all the costs, insurance and charges, to the extent that they are for the Seller account in accordance with the sale contract including the applicable Incoterm®.
4.2 The Seller shall be entitled to revise and increase any agreed prices in the sale contract further to any changes occurred between the formation of the sale contract and the performance thereof, in the costs of supplying the Goods to the Purchaser, including but not limited to currencies exchange rates, import or export duties, other levies, insurance premiums, freight or commodity market rates). Such revision shall be notified in writing by the Seller to the Purchaser.
4.3 The price shall be paid by the Purchaser in the agreed currency and within the agreed schedule provided for in the sale contract. When required by Seller, the Purchaser agrees to make any advance payment of all or part of the price of the Goods. When necessary, the Purchaser undertakes to collect/accept all documents when presented by Seller bank or the bank’s agents. The Purchaser shall also carry out all measures necessary for the immediate transfer of relevant funds. The amounts shown on the invoice shall be due and payable without any deductions or set- off whatsoever, unless otherwise agreed on writing. No dispute shall entitle the Purchaser to suspend the payment of any related invoice. Any claim relating to any invoice should be notified to the Seller by registered letter within 15 calendar days as from the date of the invoice.
4.4 When required by Seller, Purchaser agrees to issue any applicable guarantee to a first class bank in order to secure the payment of the price, including any L/C or cash deposit. In such a case, the sale of Goods shall be deemed to be subject to a condition precedent that the agreed guarantee be issued. The sale of Goods shall not be completed as long as the agreed guarantee has not been issued. In the event where any discrepancy whatsoever would arise between a L/C and the demand and/or other related documents, or in case of late demand under any applicable L/C, and provided that the Purchaser has the right to waive such discrepancy or such delay under the applicable UCP, the Purchaser undertakes to waive such discrepancy or delay to the extent allowed by the applicable law and give the necessary payment instructions in this respect to the Seller bank or bank’s agents. In addition, it is expressly agreed by the Seller and Purchaser that in the event where the price of the Goods would not be paid under any applicable L/C for any reasons whatsoever, the Purchaser strictly undertakes to pay the price to the Seller in accordance with these Conditions.
4.5 Failure to pay the purchase price by the due date constitutes a fundamental breach of Purchaser obligations. In case of failure or delay of payment, Purchaser shall owe to the Seller by right and without notice, delay interest at the legal rate established pursuant to the Belgian Law of 2 August 2002 on combating late payments in commercial transactions. Purchaser shall also be liable to Seller of a compensation clause equal to 10% of any unpaid amount without prejudice of the right of Seller to claim compensation for higher damages.
4.6 In the event the Purchaser is in breach of any price payment towards the Seller, the latest may, without prejudice to other available remedies, (i) terminate the relevant sale contract with immediate effect by written notice to the Purchaser as per Article 12 of these Conditions, and/or (ii) suspend or cancel deliveries under the sale contract of the Purchaser, until all amounts due are paid in full. Furthermore, all other outstanding invoices will become immediately due and payable without notice.
5. DELIVERY, TRANSPORT AND RISKS
5.1 The delivery dates mentioned in the sale contract are indicative unless expressly agreed otherwise in writing. In any case, the Seller shall not be liable in respect of any loss or damage suffered by the Purchaser arising out of or in connection with any delay in delivery of the Goods. Moreover, the Seller shall only be obliged to supply within the scope of its existing capacities and taking account of prior sale contracts entered into between other customers.
5.2 Unless otherwise agreed in writing, the delivery or shipment of the Goods shall be suspended by right and without notice as long as the Purchaser is in arrears with any payment towards the Seller including any agreed advance payment of all or part of the price of the Goods, without prejudice to the Seller to claim compensation. In the event where any serious doubt would exist as to the Purchaser’s ability to fulfil the payment price towards the Seller, the latest reserve its right to suspend delivery of the Goods until satisfactory securities have been provided or advance payment has been made, as requested by the Seller at its sole discretion.
5.3 Unless otherwise agreed upon in writing, the Seller shall be entitled, at all times, to deliver the Goods in partial shipments. Each shipment shall be treated as if it constituted a separate and distinct sale contract with the Purchaser. Any failure, suspension or delay by the Seller in respect of the delivery of any part of the Goods or the discovery of any defect in any of the Goods thus delivered shall not entitle the Purchaser to cancel or terminate the remainder of the contract and shall not affect the obligations of the Purchaser in respect of the remainder of the Goods.
5.4 All transportation of the Goods shall be carried out in accordance with the agreed Incoterm® referred in the sale contract or, in the absence thereof, at the Purchaser’s risks. In the event of an inconsistency between the agreed Incoterm® and the other terms and conditions of the sale contract, the latter shall prevail. In case Seller arrange the transportation of the Goods, it shall determine at its discretion the most suitable route, means of transportation, as well as packaging of the goods unless otherwise agreed upon in writing by the parties.
6. TITLE
6.1 Notwithstanding the transfer of risks as per Article 5.4, title to the Goods shall be transferred to the Purchaser upon full payment to the Seller of the price of the Goods, including any delay interest, costs and damages if any.
6.2 All Goods delivered by the Seller to the Purchaser shall remain the Seller property until all outstanding price including delay interests, costs and damages owed by the Purchaser towards the Seller have been fully paid. As long as the title to the Goods is not transferred to the Purchaser, it shall be obliged to affix to the Goods a sign clearly indicating that the goods remain the Seller’s property. This provision remains applicable even in the event of transformation or incorporation of the Goods into other goods. In this case, the Purchaser shall acquire co-ownership of the transformed or incorporated goods pro rata to the unpaid amount of the Goods. Until price, including delay interests, costs and damages have been paid in full, the Purchaser may not resell them or pledge them without the prior written consent of the Seller. The Purchaser shall immediately inform the Seller of any seizure by a third party of Goods sold for which the price, including delay interests, costs and damages have not been paid in full and it shall disclose to such third-party the Seller title to the Goods.
7. GUARANTEES
7.1 The Seller shall be liable to deliver the Goods in compliance with the sale contract and for the proper performance of such sale contract.
7.2 In respect with the Goods, the Seller guarantees in accordance with the terms and conditions of the sale contract and within the express or implied limits and applicable tolerances thereof, only the following items: (i) the quantity of the logs, (ii) origin of the logs (iii) the quality grade of the logs (AB – ABC – BC), (iv) the measurements of the logs, and (v) when required by Purchaser, the performance of a phytosanitary treatment of the logs in accordance with the requirements of the import country. In addition, it is expressly agreed by the Purchaser that the quality grade of the Goods is solely based on an visual and external inspection of the logs, without any express or implied guarantee related to the inside part of the logs which are not visible from the outside without cut.
7.3 All claims related to the guarantee of the Goods shall be settled by Seller in accordance with Article 8.
8. ACCEPTANCE, INSPECTION AND CLAIMS
8.1 The Purchaser shall inspect the Goods and take delivery of them immediately upon presentation. All costs incurred by the Seller relating to the Purchaser’s refusal to take delivery, or delay in taking delivery of the Goods are for the Purchaser’s account, including costs of transportation and storage of the Goods. In case the risk of loss or damage to the Goods would not been prior transferred to the Purchaser according to the applicable Incoterm®, such risk shall in any event be transferred to the Purchaser on the moment of refusal to take delivery of the Goods and the Purchaser shall be deemed to have taken delivery of them.
8.2 In case the delivered Goods would not comply with the sale contract and in particular with the guarantee as set forth in Article 7, the Seller shall be informed immediately and allowed to inspect or survey the Goods. Failure of the Purchaser to immediately inform the Seller or not allowing it or its designated inspector or surveyor to survey the Goods, shall result in any Purchaser’s claim whatsoever being dismissed.
8.3 Any claim related to any guaranteed apparent quality defect or quantity of the Goods delivered must be received in writing by the Seller within 10 calendar days after the Purchaser has taken delivery of the Goods or following the moment where the Purchaser is deemed to have taken delivery. However, hidden quality defects of the Goods that could not have been discovered even through diligent inspection upon delivery must be notified within 10 calendar days following discovery thereof and in any event within 6 months from the date of delivery or from the moment where the Purchaser is deemed to have taken delivery. Claims shall be sent to the Seller either by registered letter, or by e-mail with acknowledgment of receipt to the following address claim@itssa-wood.com or by filling the claim form available on our website and the receipt date of the claim shall be considered as the date of presentation of the claim. All claims filed otherwise than required in this provision shall be dismissed. All claims filed after the relevant period set forth in this provision shall also be time-barred.
8.4 All claims shall be documented with an inspection report from the Purchaser or from a neutral survey company accepted by the Seller. Goods supplied which are subject of a Purchaser’s claim must be immediately, properly handled and stored, clearly marked and must not be used until the claim is settled, unless otherwise agreed in writing. Purchaser must allow Seller to inspect or survey them without as per Article 7.2.
8.5 Except in case of any guaranteed hidden defect, no claim shall be accepted once the Goods are processed or resold. Furthermore, the Purchaser shall lose all rights to claim for defects if the Goods were improperly handled or stored.
8.6 In case of acceptance by the Seller of any claim filed by the Purchaser and subject to the guarantee as set forth in Article 7, the Seller shall, at its sole discretion, either (i) replace Goods at its expense or (ii) refund the price partly or in full. Any and all further claims or demands of the Purchaser on whatever legal basis shall be rejected.
9. LIMITATION OF LIABILITY
Except in case of Seller’s fraud or wilful misconduct or in case of injury to life or physical integrity, but
well in case of non-wilful gross negligence, the aggregate liability
of the Seller in connection with each sale contract of
Goods to the Purchaser for any loss
or damage of whatever nature and whatever cause shall be limited to and in no circumstances, shall exceed (i) any applicable Seller liability insurance coverage or, in absence of any such liability insurance coverage, (ii) the price of the
Goods concerned or (iii) if the Goods
are delivered in partial shipments, the
price of each shipment of the Goods concerned. The Seller shall, moreover, not be liable to the
Purchaser, for any loss of profit,
loss of use, loss of income, loss of production or accruals, loss of contracts, loss of goodwill or for
any financial or economic loss or for
any other indirect or consequential damage.
10. FORCE MAJEURE
10.1 The Seller shall not be held liable for any breach of the sale contract, when such breach results from a force majeure event. Force majeure shall mean any event beyond the control of the Seller, which was unforeseeable upon formation of the sale contract and makes it temporarily or permanently impossible to perform all or any part of Seller obligations.
10.2 In particular, the following events shall be deemed to be force majeure events:
• any act of god, natural disturbance, adverse weather, war, employee accident, terrorism, riot, fire, explosion, accident, flood, epidemics, quarantine restrictions, highly contagious or infectious diseases, sabotage, mechanical breakdown, plant shutdown, delay during transportation, the impossibility to obtain fuel, power, transporter, materials or equipment from our usual resources at reasonable prices, suspension of transport, governmental laws, regulations or orders; or
• any supply chain interruption, caused by any reason whatsoever; or
• any other cause beyond the Seller’s reasonable control; or
• any labour disturbance, strike, lock-out or injunction, which events in any case are deemed to be beyond Seller’s reasonable control; delays, restricts, limits or renders commercially infeasible such performance.
10.3 The Seller affected by a force majeure event shall notify the Purchaser within 15 calendar days from it becoming aware of such event. The Seller shall then inform the Purchaser of its termination within the same period as provided above.
10.4 The obligations of the Seller invoking force majeure shall be suspended as long as they cannot be performed due to a force majeure event. The Seller shall have no obligation to procure goods from other sources.
10.5 In the event that performance under the sale contract is rendered impossible for more than 2 calendar months, save otherwise agreed in writing, either party may terminate such sale contract by written notification to the other party, unless the parties decide to amend the sale contract to take into account the new circumstances arising from such force majeure event.
10.6 A force majeure event may not give rise to any claim for damages, nor for compensation whatsoever. The Seller shall only be liable to the Purchaser for such part of the sale contract which was performed before the force majeure event arose.
11. HARDSHIP
11.1 If performance of the Seller contractual obligations has become excessively onerous due to any non-faulty events and which were unforeseeable at the time of the formation of the sale contract, so that Seller may not be reasonably required to perform its contractual obligations, the parties shall negotiate alternative contractual terms in good faith.
11.2 If such negotiations fail or alternative contractual terms are not concluded within a reasonable time period, the Seller shall be entitled to terminate the sale contact without incurring any liability, nor damages.
11.3 The Purchaser acknowledges and agrees that any market fall or decline or price decrease occurred between the formation of the sale contract and the performance thereof, making the sale more onerous or even excessively onerous for Purchaser, shall in no case be unforeseeable, nor be at Seller’s risk, and shall not entitle the Purchaser to require the Seller to negotiate alternative sale terms including the agreed price.
12. TERMINATION
12.1 Without prejudice of Article 4.6 or of other remedies, including damages which may be required from the Purchaser in compensation for the prejudice sustained by the Seller (by way among other of set-off of any advance payment made by Purchaser), all or any part of the sale contract may, without judicial intervention and with immediate effect, be terminated by the Seller upon notification to the Purchaser, if:
12.1.1 the Purchaser fails to comply with any of its obligations under the sale contract including these General Conditions, including but not limited to non-compliance of Articles 4.3., 4.4. or 8.1.
12.1.2 the Purchaser is insolvent, is party under any collective judicial reorganisation or similar proceedings or files for bankruptcy, is under dissolution, winding-up or any other similar events, provided however that this termination is allowed by mandatory legal provisions of the applicable law.
12.1.3 it is in Seller’s opinion obvious that the Purchaser, after having been given notice to provide, within a reasonable time, sufficient assurances of the proper performance of its obligations, shall not perform them when due;
12.1.4 a force majeure event occurs which may delay performance of the sale contract for more than 2 calendar months;
13. CONFIDENTIALITY – DATA PROTECTION
13.1 All written or verbal information supplied by the Seller to the Purchaser regarding the sale contract shall be treated as confidential. Any infringement by the Seller of Purchaser’s rights may give rise to the payment of damages without prejudice of other available remedies.
13.2 Unless needed for the proper performance of the sale contract, the Purchaser shall keep confidential and refrain from disclosing to third parties any information acquired by the Purchaser.
13.3 Any information in the public domain or held or acquired lawfully from third parties without any breach of an obligation of secrecy shall not be deemed confidential information.
13.4 All personal data collected related to the Purchaser and any related sale contract will be treated in accordance with applicable legislation. The most recent version of our privacy statement will always be available on our website.
14. SUB-CONTRACTING – ASSIGNMENT
The Seller may assign or subcontract all or part of the sale contract to any third party without the prior written consent of the Purchaser.
15. VARIOUS
15.1 The invalidity, illegality or unenforceability of any provisions of these Conditions and the ones of any related sale contract to which they apply, shall not affect the validity, legality or enforceability of any other provision in these Conditions, which shall remain in full force and effect. In such a case, the parties undertake to replace any invalid, illegal or enforceable provision by a valid, legal and enforceable one which is as close as possible from an economic point of view to the invalid, illegal or enforceable provision.
15.2 Any required notification between the parties will be validly made by registered letter. Any other communication could be made by electronic means.
16. APPLICABLE LAW
These Conditions and any sale contract to which they apply shall be governed by Belgian law.
17. JURISDICTION
Any dispute arising directly or indirectly from these Conditions and/or any sale contract to which they apply, including in relation with its formation, performance, interpretation or termination, which may not be settled amicably shall be finally settled under the rules of arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with said rules. The place of arbitration shall be Paris (France).
GTCS September 2023 rev. 0