TERMS AND CONDITIONS OF SALE

1. ORDER ACCEPTANCE.  The client’s order is subject in all respects to CMT Europe’s final approval and acceptance at its home office in Langdorp, Belgium.  Upon such acceptance, these Terms and Conditions of Sale (hereafter “Terms”) shall bind the parties as to CMT Europe’s sale and delivery of equipment, goods, or services to client.  All services or sale of goods are subject to the issuance of a prior written quotation. The client must accept the quotation in writing before the order can proceed. CMT Europe will only supply the services or goods listed in the quotation. All other services or goods requested by the client are subject to extra costs. The services offered or sale of goods agreed in the quotation shall begin within ninety (90) days of the quotation acceptance. Otherwise, after this time, the quotation is invalid. These Terms supersede any additional or different terms imposed by the client. Neither CMT Europe’s performance nor its delivery of products or services hereunder shall constitute acceptance of additional or different Terms.
2. PRICING.  The sales price of equipment, services or goods quoted under these Terms is valid for one (1) month after the date hereof. If the client accepts the quotation after such time, the sales price is subject to escalation. The client shall bear all costs of delivery, including, but not limited to, transportation, customs fees, importation duties, and insurance charges. The price of goods, services and labour are subject to an annual inflation index. CMT Europe reserves the right to modify its prices for labour, services, or goods without prior notification. The price of labour, services or goods is an estimate and may change owing to unforeseen problems or circumstances during the project.
3. PAYMENT TERMS. The client shall make all payments in euros to the specified bank account. Unless otherwise specified in the main section of this document, the Payment Terms in part 3 of the Terms are in force. The Payment Terms are in accordance with Directive 2011/7/EU. The client shall make full payment upon receipt of the invoice. Failure to make full payment constitutes a breach of contract ⁽¹⁾.
   
   On overdue accounts ⁽²⁾, the client shall pay a service charge equal to eight percent (8%) margin rate plus the European Central Bank main refinancing rate of the unpaid balance per year ⁽³⁾, simple interest calculated daily ⁽⁴⁾, until the client pays its account in full. CMT Europe is not obliged to give prior notice of non-performance or similar notice before interest is charged ⁽⁵⁾. CMT Europe reserves the right to claim for administrative and legal costs resulting from any overdue accounts ⁽⁶⁾. In the event of non-payment of an invoice after the due date CMT Europe shall charge a storage fee of ten (10) EUR plus VAT per day for goods until full payment has been effected. This is in addition to the service charge.
   
   If full payment has not been effected after one (1) month, CMT Europe reserves the right to litigate (refer to these Terms, 11. GENERAL. d. below) to recover all owed monies. CMT Europe shall not release any goods until the client has paid outstanding invoice in full. Regardless of any prior approval of credit, CMT Europe may require full or partial payment in advance. The client represents to CMT Europe that it is solvent, and acknowledges that CMT Europe’s performance is in reliance upon this representation. The client agrees to provide written confirmation of its solvency at CMT Europe’s request. Within ten (10) business days after CMT Europe’s request, client shall deliver its financial information in form and substance satisfactory to CMT Europe. If the client fails to deliver such information, CMT Europe may suspend delivery of goods or services until receipt of such information.
   
   When an order for specially made parts (non-standard or custom made) is created then the client must pay the full invoiced amount in advance.
4. RETENTION OF OWNERSHIP TITLE. Until payment in full of the purchase price, CMT Europe shall retain the title of ownership to the goods or equipment, including all additions and replacements thereto and proceeds thereof ⁽⁷⁾.
5. SHIPMENTS AND RISK OF LOSS. All shipments shall be FCA Incoterms 2010 CMT Europe’s shipping point. Actual equipment or parts delivery to a common or contract carrier shall transfer responsibility for the equipment or parts to the client, and, thereafter, the client shall bear all risk of loss, damage, destruction, and theft. The method and means of shipment and packaging shall be as CMT Europe’s standard procedures unless client arranges otherwise in writing. In no event shall CMT Europe assume any liability in connection with shipment, nor shall the common or contract carrier be deemed an agent of CMT Europe. Any equipment or parts stored or delayed at the client’s request or held at the client’s request en route shall be at the client’s risk and for the client’s account. Without CMT Europe’s consent, the client may not revise or reschedule its equipment or parts order within thirty (30) days prior to shipment.
6. LIMITED WARRANTY. CMT Europe warrants that new equipment or parts sold separately under these Terms to private individuals are free from defects in workmanship and materials for a period of twenty-four (24) months and all refurbished/reworked or functioning secondhand parts/equipment sold to private individuals are subject to a limited twelve (12) month warranty period when used in accordance with CMT Europe’s instructions from date of shipment. All known defective parts or equipment supplied by CMT Europe have no warranty. Warranty repairs on equipment or goods supplied by CMT Europe can only be performed by CMT Europe.
   
   All warranty repairs can only be done at the premises of CMT Europe. If the client gets any warranty work done by another company, then CMT Europe is not liable for these repair costs. After a diagnosis to ascertain the cause of the fault, the client is liable for the costs of any repair work that is not deemed to be covered by warranty. CMT Europe shall attempt to repair a defective part before a replacement can be offered under warranty. Any replacement parts supplied under warranty shall be equivalent in quality, purpose, and condition at the time of failure, as defined by CMT Europe. Any replacement parts that have higher value than the originals (betterment) are subject to extra charges – for example, a new part replaces a secondhand part. If replacement parts are no longer available owing to obsolescence, then an attempt will be made to find an alternative part of equivalent purpose or a refund will be offered, subject to a deduction for fair use. Replacement parts supplied under warranty as part of the original sale are time limited by the original warranty period. Only parts or equipment sold by CMT Europe are covered by this warranty.
   
   Any parts supplied by a client are exempt from CMT Europe’s warranty, even when installed by CMT Europe. The client’s warranty for these parts is with their seller. When parts supplied by CMT Europe (new or secondhand) are installed as a subcomponent in a system then only those parts are covered by the warranty – not the entire system. All parts or equipment must be used and maintained in accordance with CMT Europe’s or the manufacturer’s instructions, and not subjected to unauthorised disassembly, alteration, modification, abuse, neglect, or physical damage. This warranty excludes consumable parts (such as, but not limited to, clutch components, gaskets, or rotary seals, for example) or new parts subject to wear that have a useful service life shorter than twenty-four (24) months under standard conditions of use. CMT Europe does not offer warranty against oil leaks whereby new seals are used in conjunction with old components as it is possible that the component sealing surfaces are damaged from corrosion, wear, or distortion from age.
   
   .CMT Europe offers a service contract on labour of installed parts (only parts supplied by CMT Europe), calibrations, tuning, repair of goods or parts and this service contract is not subject to any warranty. Any parts fitted during this service contract are regarded as an accessory to the repair and are not covered by any CMT Europe warranty. When a client is legally entitled to return a good for refund during the warranty period according to national consumer rights’ laws, then CMT Europe is allowed to deduct a reasonable sum of money from the refund to account for fair use during the warranty period.  CMT Europe states that any equipment/parts or services sold under commercial trading conditions i.e., business to business transactions whereby both parties are VAT registered, are exempt from consumer trading laws with respect to warranty obligations.
   
   THE ABOVE WARRANTY IS CMT EUROPE’S SOLE AND EXCLUSIVE WARRANTY, AND CMT EUROPE HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
7. LIMITATION OF LIABILITY. CMT Europe is not liable for loss or damage to goods owned by clients due to theft, flooding, fire, or malicious acts. The client, as owner of the goods, is responsible for ensuring adequate insurance is in force to cover such losses. CMT Europe adheres strictly to the manufacturer’s procedures and recommendations (i.e., suitability of fasteners, torque settings, lubricants, service schedules, etc.) for the installation, maintenance and repair of its equipment and is not liable for any failures caused by following these instructions. CMT Europe is not liable for any damages (whether direct or indirect) caused by using non-standard or non-original parts that do not comply with OEM specifications. CMT Europe is not liable for the suitability or functioning of any parts supplied by the client. The client is liable for the labour costs of replacing these unsuitable parts. The client is obliged to report any warranty related issue to CMT Europe within one (1) month of the issue being noticed. CMT Europe is not liable for any further damages caused by the client continuing to use known or suspected faulty equipment. CMT Europe is only liable for equipment (or a subcomponent of) or goods it has worked on. CMT Europe is not liable for the correct functioning of other related components in equipment that it has not worked on.
   
   With respect to equipment and parts sales, or repair of goods, the client’s exclusive remedy and CMT Europe’s exclusive liability under these Terms and otherwise shall be repair or replacement, at CMT Europe’s option, of the defective equipment or parts within their respective periods of warranty, up to the original value of the goods or parts. Only CMT Europe shall supply replacement parts.
   
   CMT Europe shall be given one (1) attempt at repair before a replacement good can be offered. The client waives all claims for alleged defects unless the client shall have delivered such claims in writing to CMT Europe at its Langdorp, Belgium office within the period of warranty. CMT Europe is not liable for (i), damages to parts or goods if the manufacturer’s installation or usage instructions have not been adhered to by the client, (ii), damages to parts installed or supplied by CMT Europe if failure is caused by the action of a third-party component, (iii), damages to third party goods or equipment through failure of a part supplied, installed, or repaired by CMT Europe during the warranty period, (iv), the suitability of parts requested by or sold to a client and installed without the prior approval of CMT Europe for the intended application, (v), the cost of mounting or removing incorrectly ordered parts. The client is liable for the costs (such as shipping, insurance, and customs’ fees) of returning the defective goods or incorrectly ordered parts to CMT Europe for repair or replacement.
   
   THE FOREGOING REMEDY IS THE CLIENT’S SOLE AND EXCLUSIVE REMEDY AS TO THE SALE, DELIVERY OR REPAIR OF ANY EQUIPMENT OR GOODS HEREUNDER, WHETHER IN CONTRACT OR TORT (INCLUDING NEGLIGENCE, PRODUCT LIABILITY AND STRICT LIABILITY), UNDER ANY WARRANTY OR OTHERWISE. CMT EUROPE SHALL NOT BE LIABLE TO THE CLIENT FOR DIRECT OR INDIRECT (CONSEQUENTIAL) LOSSES, OR INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS (CURRENT AND FUTURE), LOSS OF REVENUE, LOSS OF PROPERTY OR EQUIPMENT, LOSS OF USE, LOSS OF GOODWILL, LOSS OF BUSINESS, OR CLAIMS OF THE CLIENT’S CUSTOMERS, EVEN IF THE CLIENT HAS ADVISED CMT EUROPE OF THE POSSIBILITY OF SUCH DAMAGES.
8. CLAIMS AND RETURNS. The client may not return any equipment or components to CMT Europe without CMT Europe’s prior written consent. The client is responsible for the return of the goods or equipment to CMT Europe for warranty repair or refund. The client shall bear all delivery costs that (i) the client incurs in returning equipment or components, and (ii) CMT Europe incurs in returning any equipment or components replaced or repaired under warranty to the client. CMT Europe shall assume ownership of defective exchanged parts or equipment replaced under warranty or goodwill. All special order parts (non-standard or custom made) cannot be returned for a refund. Used standard parts cannot be returned unless it is for valid warranty reasons. Any standard parts that are returned for refund must be in their original undamaged packaging. Standard parts with damaged packaging are liable for a fifteen percent (15%) return fee. Any returned standard parts (used) and not covered by warranty, cannot be refunded.
9. CANCELLATION. If the client terminates its equipment or standard parts order prior to delivery for reasons other than CMT Europe’s fault, the client agrees to pay as damages to CMT Europe (i) the manufacturing cost of the equipment sold, (ii) a return fee of fifteen percent (15%) of the manufacturing cost of the equipment or value of the standard parts, and (iii) all storage and resale costs, including any necessary retooling costs. For rebuilding or restorations works that are cancelled by the client after such works have commenced, the client is liable to pay the full price as stated in the quotation for those works. Such damages shall be liquidated damages and not a penalty. If an order for special parts (non-standard or custom made) is cancelled by the client before delivery to the client then the client is liable for the full cost of the order. The parties agree that these provisions are reasonable under the circumstances as of the date hereof.
10. TAXES. CMT Europe’s prices include (where specified) any national tax now or hereafter imposed upon the production, storage, sale, transportation, or use of the equipment, including added value, use, withholding, excise, or similar taxes. CMT Europe shall invoice the client for all such taxes, and the client shall pay all such invoiced taxes.
11. GENERAL.
    1. These Terms set forth all agreements and understandings, whether written or oral, between the parties hereto with respect to the subject matter hereof and supersede any prior or contemporaneous agreements and understandings.
    2. By agreeing to these Terms, the client acknowledges the competence of CMT Europe to supply/provide services and goods.
    3. Any notice hereunder must be in writing and be deemed delivered (i) on the date of delivery if delivered personally; (ii) one (1) day after the date of delivery by facsimile or email; and (iii) seven (7) days after the date of posting using registered (signed-for) post.
    4. These Terms shall be governed by and construed according to Belgian law and in the competence of Belgian (Leuven) courts. In the event of any litigation or arbitration hereunder, the prevailing party in such action may be entitled to reimbursement of its legal fees and costs, in addition to all other recovery and relief.
    5. Any assignment by client of its rights or duties hereunder without CMT Europe’s prior written consent shall be void. Transfer of control of over fifty percent (50%) of the client’s rights or duties shall constitute an assignment hereunder.
    6. CMT Europe is not liable for non-performance resulting from unforeseen circumstances beyond its reasonable control (force majeure), including but not limited to natural disasters, war, fire, earthquake, adverse weather conditions, flooding, accidents, labour dispute or shortage, civil unrest, government actions, loss of internet access, or a shortage or inability to obtain raw materials (including energy), equipment, parts, or transport on practical terms. In the event of force majeure, CMT Europe reserves the right to suspend the provisions of this contract.
    7. After acceptance these Terms shall not be amended except by in writing signed by both parties hereto. If any provision hereunder is held to be unenforceable or invalid, the remaining provisions shall remain in full force and effect.
    8. The client agrees that any works performed on equipment or goods owned by client can be recorded and documented (hereafter known as, media) for training, marketing, and advertising purposes. In addition, these media or works can be displayed by CMT Europe at trade fairs and the media can be uploaded to all the social media platforms and CMT Europe’s website. All recorded media such as, documents, drawings, schematics, photographs, videos, or digital media in any format, created by CMT Europe on behalf of the client, shall remain the intellectual property of CMT Europe in perpetuity. These intellectual property rights also extend to changes or modifications made by CMT Europe to pre-existing media created by third party organisations. CMT Europe retains the right to use these media without the prior consent of the client.
    9. Titles to the paragraphs of these Terms are solely for the convenience of the parties and do not explain, modify, or interpret the provisions herein.
       
       ⁽¹⁾ OJ L 48, 23.2.2011, p. 12
       ⁽²⁾ OJ L 48, 23.2.2011, p. 17
       ⁽³⁾ OJ L 48, 23.2.2011, art. 2, p. 6
       ⁽⁴⁾ OJ L 48, 23.2.2011, p. 15.   
       ⁽⁵⁾ OJ L 48, 23.2.2011, p. 16
       ⁽⁶⁾ OJ L 48, 23.2.2011, p. 19, 20, & art. 6, p. 3
       ⁽⁷⁾ OJ L 48, 23.2.2011, art. 9, p. 1