ACCUEIL ABOUT US PRODUCTS R&D SERVICES QUALITY PUBLICATIONS CONTACT GDPR GENERAL TERMS & CONDITIONS OF SALE CONDITIONS GÉNÉRALES DE VENTE FONDERIES J. MARICHAL KETIN ET CIE Public limited company Rue Verte Voie 39 4000 Liège Crossroads Bank for Enterprises 0403.965.705 GENERAL These general terms and conditions of sale apply to all sales and orders made by or with MARICHAL KETIN (hereinafter “Marichal Ketin” or “the Company” or “the Seller”), by a Buyer (“the Buyer”), of any product, and to any services whatsoever provided by the Company. These general terms and conditions are designed to apply to any contractual relation with the Company, unless expressly agreed otherwise in writing between the contracting parties. Any deviations from these general terms and conditions of sale, express and written or tacit, within the framework of one or more specific contractual relations, even if they are repeated, shall not be construed as a waiver of the Company’s right to invoke these general terms and conditions within the framework of other commercial relations between the same parties. If there is a contract governing relations between parties, the present general terms and conditions of sale shall fully apply to matters not expressly covered by the contract in question. In the event that any of the provisions of these general terms and conditions of sale becomes totally or partially null and void, unenforceable or illegal, this shall not affect the validity of the other provisions contained in these general terms and conditions of sale. The parties will use their best efforts to replace the invalid, illegal or unenforceable provision with a valid, legal and enforceable provision having a similar effect. In the event of a discrepancy between the Company’s general terms and conditions and those of the co-contracting parties, it is agreed that only the present terms and conditions shall prevail. VALIDITY OF THE AGREEMENTS Any contractual relation between the Buyer and the Company materializes based on an order form sent by the Buyer which constitutes a firm order on its part and accepted by the Company. The Buyer is bound by all terms indicated in the order form and in particular the delivery address, the Buyer’s identity, the quantity purchased, etc., unless expressly derogated from in writing by the Company in writing. The derogations from these general terms and conditions on the Buyer’s order forms are expressly recognized as invalid. The Company can only be bound by the terms of its express acceptance of this firm order from the Buyer, by means of a formal written acknowledgement of receipt. Any other price quotes, proposals, preparatory documents from the Company as a Seller are not contractual and are issued without obligation on its part. Any firm order cancelled in whole or in part by the Buyer shall entitle the Company to compensation, it being understood that the minimum damages the Company is entitled to are set at a fixed amount of: 30% of the cancelled part of the order including the part of the surcharges on the cancelled part of the order (if the product purchased is a roll and the roll is not cast), 60% (if the cylinder is cast) of the order amount (including the part of the surcharges on the cancelled part of the order), 95% if the cylinder is nearing completion or declared finished, subject to greater damage. Based on a factoring contract entered into with a third party, the Company may validly assign all or part of the rights and obligations resulting from the agreement with the Buyer with regard to the existing receivables, to that third party or have all or part of them performed by that third party, without the Buyer’s agreement or any notification to that effect, provided that this assignment concerns receivables and that the related payment terms are mentioned on each invoice to the Buyer. The Buyer shall not transfer all or part of the contract to third parties without the Seller’s prior written consent. PRICE The prices of the goods and services provided by the Company are defined in the Company’s quote to the Customer and then confirmed in the acknowledgement of receipt sent by the Company. Customs duties, taxes, VAT and other present or future charges under the legislation in force at the time these taxes are due are payable by the Buyer unless there is a specific agreement. If prices include the cost of transport, these are understood to be for normal transport conditions and per full load, at the rates in effect on the day the acknowledgement of receipt is issued. Any surcharge resulting from incomplete or unforeseen loads may be charged to the Buyer. Any fluctuation in the transport costs considered for pricing will entail a corresponding price change. Alloys and energy clauses may apply on a case-by-case basis depending on the terms of the Company’s quote. INVOICES AND PAYMENTS TERMS Unless expressly provided otherwise, invoices sent by the Company shall be paid within 30 days of the date they are sent, by bank transfer or by another commercial papers agreed between the Parties. Any invoice that remains unpaid on its due date will carry as of right and without prior formal notice, a 2% interest rate per month until the day of payment, whereby any month that has commenced is due in its entirety[1]. Likewise, the due payment will be increased with a penalty clause, as of right and without formal notice, corresponding to 5% of the amount due, without prejudice to any other damages that may be due. Unless otherwise agreed, the price of the goods is payable at the Seller’s registered office. The Buyer may have to bear the exchange rate difference between the rate on the day of payment and the rate on the day the invoice is due. Any delay in payment, failure to meet its obligations by the Buyer or the refusal or protest of a draft shall authorize the Seller, without prejudice to the right to request the rescission of the contract as provided in article 11 and to claim damages, to exercise a right of retention over the goods sold and its accessories, as well as over the goods and accessories of other commercial transactions entered into with the same Buyer, as well as with other Buyers, whether they are Belgian or foreign, forming part of the group, within the meaning of article 1.14 and following of the new Code of Companies and Associations, the Buyer in arrears of payment belongs to. If the Buyer’s solvency could be questioned, the Seller will be able to demand, at any time and until the price of the goods has been paid in full, new or additional guarantees for receivables overdue or falling due or cash payment before delivery, without the Buyer being able to avoid this requirement by invoking the special payment terms and guarantee conditions laid down for the contract and without being able to claim any damages. The Buyer’s solvency is in any event considered to be questioned: (i) if the Seller’s credit insurer refuses to provide cover for orders from the Buyer, or (ii) in the event of delayed payment, failure to meet its obligations by the Buyer or the refusal or protest of a draft or the delivery of a bad check resulting from other commercial transactions entered into with the Buyer. If the Buyer does not meet the Seller’s request for cash payment before delivery or to provide a guarantee as referred to in the previous paragraphs, the Seller may at its discretion either suspend the performance of its obligations or rescind the contract, without prejudice to the Seller’s rights to damages. In the event of delayed or suspended shipment, full payment of invoices is due within fifteen days from the date on which the goods left the Seller’s factories, unless the payment terms provide otherwise. The issuance or acceptance of drafts, direct collection or any other method of payment shall not constitute novation or a departure from the agreements or from the general terms and conditions of sale and in particular from the clauses regarding applicable law and jurisdiction. DELIVERY TIMES The Company indicates the delivery times in terms of months in the price quote to the Customer so that he/she can specify a delivery date in the order. On this basis, the Company confirms or arranges a delivery date which will be indicated in the acknowledgement of receipt of the order. Scheduled, implemented or shipped deliveries of cylinders cannot be cancelled under any circumstances by the Buyer. FORCE MAJEURE Force majeure shall mean any foreseeable or unforeseeable event outside the parties’ control: making it impossible to fulfil all or part of the obligations placed on the parties, such as, in particular, changed standards and legislation, strikes, riots, wars, embargoes, natural disasters, pandemics, epidemics, explosions, fires, destruction and breakdown of machinery, factories and facilities, serious operating accidents; or resulting in a shortage or a serious disruption of the conditions, including financial and economic conditions, of the supply of raw materials and energy, upsetting the economic bases of the contract to the detriment of either party. The obligation to pay a sum of money is never affected by force majeure. The occurrence of a case of force majeure, as defined in the previous paragraph, on the part of a supplier of the Company, disrupting or likely to disrupt the supply of raw materials, energy, materials of the Company or means of transport will also be considered a case of force majeure on the part of the latter. In the event of a case of force majeure, the affected party must notify the other party within 15 days of learning of the occurrence of the case of force majeure, by any means at its disposal: fax, email, letter with acknowledgement of receipt. In the event of a case of force majeure, the obligations of the affected party are suspended. In the event that the consequences of the force majeure event persist for an uninterrupted period exceeding 60 days, the parties will meet at the request of the most diligent party, in order to rule on the conditions under which the execution of the delivery or service could resume. In the absence of agreement within 30 days of the request made by the most diligent party, the party affected by the event may seek the rescission of the agreement by registered mail without having to pay compensation. SHIPMENTS OF GOODS Unless otherwise agreed, goods are sold FCA (Free on Truck) in Europe and are considered sold, delivered and accepted when loaded onto the carrier. Therefore, the goods are transported at the Buyer’s expense and risk. For the rest of the world (except for the United States), goods are sold FOB (Free on Board), meaning the Buyer bears the costs and risks from the port of shipment. For the United States, shipping is based on the DDP Incoterms (Delivered Duty Paid). However, in the event of non-collection or inaccessibility of the delivery location within the framework of a CIF, CFR or DDP delivery, the Buyer shall bear the costs of storage and the unused containers. With regard to orders for which the Buyer does not provide the means of transport for which it is responsible (FCA, FOB, Free forwarding station), the Seller reserves the possibility to deliver the goods to a warehouse of its choice. In that case, the WR (warehouse receipt) can replace the BoL (bill of lading). The Seller shall not be in any way liable for delivery times by rail, river, sea or road. It is the Buyer’s responsibility to ensure, even before the material is manufactured, that the Seller is provided with precise instructions as to the shipment and destination of the goods. These instructions shall be sent to the Seller in writing in due time. Failing sufficiently precise instructions, shipments will be made according to the Seller’s best judgment. In any event, payment is due to the Seller on the date the goods are made available. If for reasons specific to the Buyer, transport cannot take place on the date specified in the order or on the roll availability date if this date is greater than the previous one, the Seller shall be entitled to invoice the Buyer. In any event and subject to the provisions of points 2 and 3 of this article, the Seller is entitled to invoice the Buyer for the costs of storage, additional handling and any damage that may be caused to the Seller, in particular in the event of inaccurate shipping instructions or due to lack of shipping instructions by the Buyer. The Seller declines any liability with regard to the quality of the material supplied by the carrier designated by the Buyer. Without prejudice to article 7.1. above, in general, the shipping terms applicable to the goods will be those of the new Incoterms[2] rules issued by the International Chamber of Commerce (ICC). In any event, the Seller reserves the right to require the Buyer to provide proof that the final destination of the material is the destination indicated when the contract was entered into. Unless otherwise stipulated and for goods whose final destination is Belgium, the Buyer is responsible for collecting and storing the packaging materials and the means of protection, fixation, bracing and securing used during the transportation of the goods. It will give those to the Company responsible for collecting them. If the Buyer fails to meet this obligation and if the Seller is held liable as a result, the Buyer undertakes to bear all consequences of its failures, as well as to preserve all rights of the Seller with regard to third parties. The Buyer cannot charge the Seller for the storage costs of this packaging. Unless otherwise stipulated and for goods whose final destination is outside the territory of Belgium, the Buyer will be responsible for collecting and recycling the packaging materials and means of protection, fixation, bracing and securing used during the transportation of the goods. If the Buyer fails to meet this obligation and if the Seller is held liable as a result, the Buyer undertakes to bear all consequences of its failures, as well as to preserve all rights of the Seller with regard to third parties. The Buyer cannot charge the Seller for the cost of destroying, recycling or storing such packaging. Without prejudice to the right to rescission provided for in article 11, uncollected goods or goods for which the Buyer has not provided any precise shipping instructions, or at its express request or for any reasons attributable to it, will stay within the Seller’s facilities at the Buyer’s risk and expense. In that scenario, the Buyer shall be liable to pay the Seller, as of right and without formal notice, a fixed compensation equal to 1 EUR per ton of uncollected goods per day, from the fifteenth day following the day on which the goods are made available to the Buyer. From the forty second day following the day on which the goods are made available to the Buyer, the Seller shall be entitled to invoice the contract amount without any additional delay, in addition to the storage costs. COMPLAINTS The goods are always deemed to be sold, delivered, accepted or definitely approved upon loading at the Seller’s factories, even if the Seller has agreed to transport them or to have them transported to the location designated by the Buyer. The Seller grants the Buyer the right to do the acceptance operations at the Seller’s factories before shipping, if the Buyer has expressed its wish to do so in the order form and the goods are considered to be definitively accepted upon loading at the Seller’s factories. No complaint, even if it is justified, shall authorize the Buyer to defer payment or to change any of its terms, or to issue a debit note. Moreover, no complaint will be taken into account by the Seller, in the absence of payment by the Buyer. Any complaint due to hidden defect or non-compliance with the specifications will only be admissible if (i) it is made as soon as possible after discovering the defect or non-compliance, (ii) within three years from the moment the goods have left the factory and (iii) if it is properly justified, the Buyer having to indicate the quantities concerned by the complaint, as well as the references of the goods concerned. Upon simple request by the Seller, the Buyer will grant the Seller all facilities to access the goods and to examine them on site or to take them back to its factories for examination, at the Seller’s expense. No warranty is given as to properties and characteristics of the goods sold other than those provided for by the technical standards or the specifications of the Buyer expressly identified in the acknowledgement of receipt and accepted by the Seller. In this regard, the indication by the Buyer, in the order or in any other document, of the Buyer’s intended use of the goods in no way binds the Seller and shall in no way justify a complaint. If the claim made by the Buyer is accepted, the Seller may, at its discretion, (i) either provide for the replacement or repair of the faulty part within a deadline set by the Seller, (ii) or reimburse the faulty goods actually delivered. In this second case, the Seller will always limit this reimbursement to the residual value (the calculation being made in proportion to its use), and it may request the return of the goods. The warranty will not cover any other direct or indirect damage or compensation (such as production line stops, operating losses, short-time working) whatsoever. In general, the Buyer shall seek to limit its damage. PRODUCT LIABILITY Pursuant to the Belgian Product Liability Act of 25 February 1991 or any other legislation with the same purpose, the Seller, as a producer, is exempt from liability in the following cases: The state of scientific and technical knowledge at the time of delivery of the goods did not enable the Seller to detect the existence of the defect; or The defect is attributable either to the design of the product in which the raw material sold by the Seller has been incorporated, or to the instructions given by the Buyer or by the producer of this product. Under no circumstances shall the Seller be held liable (i) for the choice of the product type, (ii) for the definition of specifications applicable to the product, and (iii) for the choice of the technical standard or the product quality, which are made by the Buyer under its sole responsibility. Therefore, under no circumstances shall the Seller be held liable for the use made of the product by the Buyer, nor for its conformity depending on the use to be made by the Buyer. Similarly, the Seller shall not be held liable for the total or partial inability to use the product due to incompatibility, the Buyer remaining the sole judge of the compatibility of the product ordered. PROCESSING OF PERSONAL DATA As the personal data controller, the Company undertakes to respect the privacy of the Buyer and of all individuals whose personal data it may hold. The way in which the Company collects and uses personal data is regulated by Belgian law, and more particularly by (i) the European Regulation (EU) 2016/679 of 27 April 2016 (General Data Protection Regulation entered into force on 25 May 2018 – the “GDPR”) entered into force on 25 May 2018 and (ii) the Belgian legislation of 30 July 2018 on the implementation of the aforementioned Regulation. By concluding a contract with the Company, the following personal data are likely to be collected: Surname Name Position within the company Home address E-mail address Telephone number (landline/mobile phone) Fax Billing address Account number Date of birth Payment data All other personal data voluntarily provided to the Company (for example during correspondence) Processing of these data is based i) on the Company’s legitimate interest, ii) on a legal obligation and/or the performance of any contract entered into with the Buyer and/or any undertaking given by the Buyer or by the Company or iii) with the Buyer’s consent. In the latter case, the Buyer’s consent will be expressly requested prior to the desired processing of personal data. The Company undertakes not to disclose personal data to third parties, except when this is necessary for the provision of services and their optimization (such as drawing up an invoice, a satisfaction survey for internal statistics, etc.). In this context, personal data might be made public to payment partners, software providers, cloud partners, transport partners, external IT consultants, insurance companies, service providers and any other business partner which the Company may call upon in the context of the provision of services. If, in this framework, it is necessary for the Company to disclose collected personal data to third parties, the third party concerned will be required to use these personal data in accordance with the obligations imposed by the GDPR. As a processor of the personal data processing by the Company, within the framework of the services offered, it is the Buyer’s responsibility to sign a personal data processing agreement with the Company. The Company will keep these personal data for a 3-month period from the end of the services rendered, except to comply with a legal obligation. Beyond this period, the data will be immediately destroyed. The erasure or destruction of data entails an exemption from liability on the part of the Company in the event of a claim or damage issued by the Buyer, by a person concerned or by any other third party, except in the event of fraud or gross negligence on the part of the Company. RESCISSION AND SUSPENSION The Seller is entitled to wholly or partially rescind the contract entered into with the Buyer with immediate effect and without any compensation, without prior formal notice or a court order and subject to all its rights, in the scenarios specifically referred to in the present general terms and conditions, as well as in the following cases: any failure whatsoever of the Buyer to meet its obligations towards the Seller such as for example the refusal to take delivery of the goods (the lack of precise shipping instructions being equated with such a refusal), late payment, etc.; bankruptcy, cessation of payments, request for or acceptance of judicial reorganization of the Buyer and, more in general, any proceeding leading to competing claims between the Buyer’s creditors or aimed at obtaining a suspension of payment (such as the specific proceedings organized by the Belgian Business Continuity Act or any other similar legislation); total or partial termination of activities, immobilization, liquidation or insolvency of the Buyer’s company; seizure of the Buyer’s assets or protest of bills of exchange; late payment of social security contributions or of any taxes or tax charges whatsoever; if it is clear that the Buyer will not be able to meet its own obligations. In those cases, the contract will be rescinded by simple notification of the Seller’s wish to rescind to the Buyer, by registered letter. The rescission is deemed to have occurred on the day the registered letter is handed over to the post office by the Seller. The Buyer shall also be liable to pay as of right, for every rescinded Contract, a fixed and irreducible indemnity equal to 30% of the amount of the rescinded Contract, subject to the Seller establishing greater damage, whereby the damage suffered by the Seller needs to be fully compensated. If, in application of article 11.1, the Seller has the possibility of rescinding a specific contract, the Seller will also have the possibility to rescind all or part of the other contracts entered into with this Buyer, as well as all or part of the contracts entered into with other Buyers, whether they are Belgian or foreign, that are part of the group, within the meaning of article 5 of the Belgian Company Code, this specific Buyer belongs to. In those cases, the contract (s) referred to by the Seller will be rescinded by simple notification of the Seller’s wish to the Buyer or the Company concerned, by registered letter. The rescission is deemed to have occurred on the day the registered letter is handed over to the post office by the Seller. Buyers of whom one or more contracts are rescinded based on the above shall also be liable to pay, as of right, for every rescinded contract, a fixed and irreducible indemnity equal to 30% of the amount of the rescinded contract, subject to the Seller establishing greater damage, whereby the damage suffered needs to be fully compensated. In the event of rescission of the contract by the Seller for one of the scenarios referred to in article 11.1, no damages for any reason whatsoever of whatever nature will be payable by the Seller to the Buyer. In the event of rescission of the Contract by the Seller based on article 11.1, the Buyer has the obligation, at its own expense and risk and without prejudice to the Seller’s other rights, to return the goods that have already been shipped to the Seller and to provide transport for this purpose. The Seller, by simple notification to the Buyer by registered letter, will also have the possibility, in the cases referred to in article 11.1 and without prejudice to its other rights, to object to the handover of the goods to the Buyer, even if the latter has a document enabling it to obtain them. EXTENDED RESERVATION OF TITLE The goods sold, even if they have undergone some kind of transformation, shall remain the Seller’s property until the related invoices have been settled in full. It is acknowledged that bank transfer or any other commercial papers shall be considered payment. During the period of reservation of title, the risks and custody of the goods are passed on to the Buyer, once they have left the Seller’s factories. The Buyer undertakes to keep these goods in such a way that they cannot be confused with other goods and can be recognized as the Seller’s property. GENERAL The fact that the Company does not implement a clause stipulated in its favour by these general terms and conditions shall not be interpreted as a waiver of its right to avail itself of them. The nullity of a clause of these terms and conditions does not invalidate the other clauses. DISPUTES The relations between Buyer and Seller are governed by Belgian law. In cases of dispute, the Liege courts shall have exclusive jurisdiction. The French version of the general terms and conditions of sale – 2020 Edition – shall prevail over the other languages. The general terms and conditions can also be consulted on www.mkb.be. [1] In the event of disagreement between the Parties on the calculation of interest, they agree to refer to the annual rate set by the Belgian Act of 2 August 2002 on combating late payment in commercial transactions. [2] 2010 Incoterms rules entered into force on 1 January 2011. Salut