PREMIUM SOUND SOLUTIONS
GENERAL TERMS AND CONDITIONS OF SALE
GENERAL TERMS AND CONDITIONS OF SALE (updated November 6th, 2018)
All of PSS BELGIUM NV’s (“Premium Sound Solutions” or “PSS”) products, deliveries and services are governed exclusively by the following general terms and
conditions (the “GTC”), unless specifically agreed otherwise in writing. Any agreement on one or more aspects governed by the GTC will not affect the validity of the
GTC regarding other aspects. PSS expressly objects to any additional or different terms proposed or imposed by the customer, and any deviating terms and conditions
shall not become part of any contract between PSS and the customer, either by acceptance of an order or implicitly by any other act. Inconsistent provisions contained in
a customer’s document (for example, but not limited to, general or particular terms of purchase or sale) shall not be construed to amend, modify, supplement or supplant
the GTC, as any such inconsistent provision or term shall be deemed inapplicable to any order to, purchase from, delivery or service by PSS.
1. Offer and acceptance.
Any contract as well as any changes, ancillary agreements and other agreements become binding only upon written confirmation by PSS.
Unless agreed otherwise in writing, PSS’s prices (whether in euro, in dollar or in any other currency) do not include relevant value added taxes, duties, fees or other charges
of any nature in relation to the deliveries or services by PSS, nor transport costs, packing costs, freight and insurance costs. If PSS’s prices are quoted in or linked to a
foreign currency, PSS is entitled to readjust the prices in proportion to the change in the exchange rate of the currency applied against the euro at the time of invoicing.
Unless agreed otherwise in writing, PSS shall deliver products to the customer FCA of PSS’s warehouse or PSS’s subsidiaries’ warehouse (Incoterms 2010). Partial deliveries
are permitted. PSS may deliver products in advance of the delivery schedule. Delivery times are approximate. Failure to meet delivery times shall not entitle the customer
to any damages, compensation and/or cancellation or termination of the applicable order or any future orders. If any product(s) to be delivered to the customer cannot be
shipped to or received by the customer when ready due to any cause attributable to the customer or its other contractors, PSS may ship the products to a storage facility,
including storage at the place of manufacture, or to an agreed freight forwarder. If PSS places products into storage, then (1) risk of loss immediately passes to the customer,
if this has not already passed, and delivery shall be deemed to have occurred, (2) any amounts otherwise payable to PSS upon delivery or shipment shall become immediately
due and (3) all expenses and charges incurred by PSS related to the storage shall be payable by the customer upon submission of PSS’s invoices. Furthermore, PSS shall be
entitled, fifteen (15) calendar days after written reminder, to unilaterally rescind the contract in place between PSS and the customer in case of non-observance of the
contract by the customer, in which case PSS shall be entitled to damages equal to 30% of the price of the contract, in addition to any higher damages if PSS’s losses are
higher. PSS shall also be entitled to demand the execution of the contract.
4. Transfer of risk.
Risk of loss or damages shall pass to the customer upon delivery pursuant to Section 3, even if the transport costs or freight are paid for by PSS.
Visual defects, missing goods or other delivery non-conformities must be notified to PSS after discovery without any undue delay and at the latest within ten (10) calendar
days after discovery, failure of which the products are deemed to be accepted in perfect quantity and quality, and the customer will not be entitled to claim any warranty,
damages or indemnification. If products or services do not meet the mutually agreed specifications, the customer shall promptly notify PSS in writing prior to expiration
of the warranty period (as defined in Section 6). If during the warranty period, customer notifies PSS of a defective product or service, PSS shall, at its option (1) repair or
replace the defective product or (2) re-perform the defective service. If despite PSS’s reasonable efforts, a non-conforming product cannot be repaired or replaced, or a
non-conforming service cannot be re-performed, PSS shall refund or credit the customer for such non-conforming product or service. Warranty repair, replacement or
re-performance by PSS shall not extend or renew the applicable warranty period. The customer shall obtain PSS’s agreement on the specifications for any tests it plans to
conduct to determine whether a product or service is defective. Any products returned to PSS will only be accepted upon PSS’s written agreement and in accordance with
PSS’s instructions. Unless otherwise stipulated, the costs and the risk of sending any such products back from and to the customer are to the customer’s expense. In the
event that PSS carries out any repairs at the customer’s site, the customer shall bear all travel and accommodation expenses of PSS’s personnel, as well as any transport
costs and risk of the material and equipment used by PSS.
6. Warranty / guarantee.
PSS warrants that during the applicable warranty period, products shall be delivered free from defects in material, workmanship and title and that services shall be performed
in a competent, diligent matter in accordance with any mutually agreed specifications. The warranty for products shall expire six (6) months from first use or one (1) year
from delivery to the customer, whichever occurs first. The warranty of this Section and the remedies pursuant to Section 5 are applicable on the condition that (1) the
customer properly stores, uses and maintains the products and (2) the customer keeps accurate and complete records of operation and maintenance during the warranty
period and provides PSS access to those records. Failure by the customer to meet such conditions renders the warranty null and void. PSS is not responsible for normal
wear and tear. These warranties are exclusive and are in lieu of all other warranties, conditions and guarantees whether written, oral, implied or statutory. No implied or
statutory warranty, or warranty or condition of merchantability or fitness for particular purpose applies. The customer is not entitled to discontinue or retain payment in
the event of a complaint or call upon warranty.
The remedies provided for in Section 5 are the exclusive remedies for all claims based on or related to any failure of or defect in products or services, regardless of when
the failure or defect arises, and whether a claim, however described, is based on contract, warranty, indemnity, tort or extra-contractual liability (including negligence),
strict liability or otherwise. PSS shall not be liable or considered in breach of its obligations to the extent that PSS’s performance is delayed or prevented, directly or
indirectly, by any cause beyond its reasonable control or by armed conflicts, acts or threats of terrorism, epidemics, strikes or other labor disturbances, or acts or omissions
of any governmental authority or of the customer or the customer’s contractors, suppliers or employees. PSS shall only be liable in one of the following events : (1) willful
breach of duties, (2) grossly negligent breach of duties by PSS’s statutory representatives or persons employed by PSS during the performance of their obligations, (3) willful
or negligent injuries to life, body or health, (4) fraudulent withholding of information about defects of delivered products, (4) to the extent that PSS will be liable pursuant
to any relevant product liability act for personal injury or property damage to privately used objects, and in each case PSS’s liability will be limited to the direct and
foreseeable damages. In no event PSS shall be liable for any punitive, exemplary, incidental, consequential, special or indirect damages such as, but not limited to, loss of
profit, increase of general costs, loss of data, etc. PSS’s liability will always be limited to the price paid for the products, with an absolute maximum of two hundred and fifty
thousand euro (250.000,00 EUR).
8. Retention of title and ownership.
The transfer of title and ownership to delivered products shall occur only after PSS receives full payment of the price and auxiliary charges. In the event that the customer
fails to make a payment when due, PSS may reclaim specific products, or all products of the same kind and quality held by the customer. In case PSS repossesses said
products, the customer will be credited with their price after deducting, on one hand, the costs of repossession and, on the other, their possible loss of value between the
delivery and repossession dates (with a minimum of 30% loss). Before acquiring title to the products, the customer may neither use, operate, process or incorporate the
products, alienate, pledge or accord, grant any security interest therein to a third party, nor transform or resell them, without PSS’s prior written consent. If, however,
the products with respect to which title had been retained become part of a new item by way of connection or is built-in and if such item is owned by the customer, it is
hereby agreed that the customer transfers co-ownership to the new item to PSS and acts as bailee without compensation. PSS’s co-ownership share shall be determined
by the relationship of the value of the goods with respect to which title was retained to the value of the new item.
9. Payment and delay in payment.
Unless otherwise agreed in writing, all invoices are payable within (thirty) 30 days of invoice date, net and without discount. PSS is entitled (1) to claim advance payment(s)
of part or whole of the price before shipping the products, (2) to the issuing by the customer of an irrevocable documentary credit with an international bank of respected
reputation. Non-payment of (a fraction of) the price when due, or non-observance of any payment’s due date, as well as insolvency or similar situation (liquidation, windingup,
reorganization), shall trigger PSS’s right to demand immediate payment of all sums then still due and to retain tools and other items in PSS’s custody, until full payment
of all sums due. As compensation for the prejudice suffered as a result of said late payment(s), the customer will pay PSS (1) a sum equal to the annual rate of interest of
12% applied to the entire outstanding unpaid balance, to be calculated on a daily basis, and (2) a late payment penalty of 10% applied to the entire outstanding balance, such
sums to be due without necessity of a reminder. In addition to these sums, the customer will reimburse PSS of the corresponding collection expenses, with a minimum
fixed compensation of forty (40) EUR (or its equivalent in the invoiced currency) per unpaid invoice. Notwithstanding resort to the sanction provided above, non-payment
of an invoice when due, whether partial or in full and for whatever reason, entitles PSS to cease the performance of deliveries and services, without incurring any liability
and without necessity of a reminder.
10. Governing law and competent jurisdiction.
Unless otherwise agreed in writing, all deliveries and services performed by PSS shall be governed by the laws of Belgium, without giving effect to any choice of law rules
that would cause the application of laws of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply. All
disputes arising in connection with any delivery or service performed by PSS that cannot be resolved through negotiation, shall be exclusively submitted to and finally
resolved by the courts territorially competent for Dendermonde (Belgium).