GENERAL TERMS & CONDITIONS

CBE no. 0428.898.564

1. GENERAL

The present general terms and conditions form an integral part of all offers and agreements of NAQI® NV. The customer acknowledges that it has received the general terms and conditions and accepts the same unless it proves otherwise.

2. QUOTATIONS, PRICE LISTS AND CONTRACT PROPOSALS

Quotations, price lists and contract proposals shall be non-binding, are for information purposes only, and shall have an expressly stated period of validity. If no validity period is specified in the quotation, price list or contract proposals, the same shall be valid for 1 month after dispatch. Quotations, price lists and contract proposals shall not constitute an offer, and an order based on a quotation shall not result in the conclusion of a contract. The quotation is prepared on the basis of the data provided by the customer to NAQI® NV, and NAQI® NV shall not be responsible for the correctness of these data.

3. AGREEMENT

If an order form or quotation is accepted by the customer, an employee or an appointee of the customer, NAQI® NV may assume that this is a valid confirmation/acceptance in the name and on behalf of the customer. NAQI® NV is under no obligation to investigate whether the person concerned is authorised to act on behalf of such customer.

The contract between the customer and NAQI® NV shall come into effect only after written confirmation of the order by NAQI® NV, after NAQI® NV and the customer sign the quotation for approval, or by NAQI® NVs (partial) execution after the order has been placed. Orders for products to be manufactured in different sizes, colours and/or shapes (customised orders) shall only be accepted in written form.

NAQI® NV cannot under any circumstances be bound by a quotation or order containing one or more omissions, mistakes or errors, even if such errors are due to the actions of a supplier.

Only the quotation of NAQI® NV, the agreements signed by it, and these general conditions form part of the agreement and shall be binding between the parties, to the exclusion of all other documents, in order to provide greater legal certainty for both parties.

4. PRICES

Prices are quoted in euros and shall always be exclusive of VAT, installation costs, transport and/or shipping costs, unless otherwise agreed in writing.

Any increase in the VAT rate or any other tax of any kind between the order and the delivery shall be payable by the customer.

The costs of normal packaging suitable for land transport shall be borne by the seller. Additional costs arising from special packaging requests on the customer's part will be charged to the customer. If, at the customer's request, the goods are delivered on pallet racks, the customer undertakes to replace them upon delivery with unladen pallet racks

of a similar type and quality, or to pay NAQI® NV the customary and valid compensation for the same at the time of the contract.

NAQI® NV's prices depend on exchange rates, fluctuations in raw material prices, packaging prices, material prices, pallet prices, energy prices, supplier prices, transport costs, labour costs and other costs.

In the event of changes in one or more of the above costs exceeding 10%, the parties have the right to change the part of the price representing these abovementioned costs, up to a maximum of 80% of the total price, by the percentage by which the abovementioned costs have changed.

5. DELIVERY

Unless otherwise agreed in writing, delivery shall be made Ex Works (EXW – Incoterms® 2020) at NAQI® NV’s registered office or other designated premises. Delivery shall take place and risk shall pass to the customer at the moment the goods are placed at the disposal of the customer at the agreed place of delivery. If no specific place of delivery has been agreed, delivery shall take place at NAQI® NV’s registered office.

NAQI® NV shall be free to choose its mode of transport. Additional costs arising from special transport requirements on the part of the customer shall be charged to the customer. Taxes, levies and costs for customs clearance by third parties shall always be borne by the customer and, if advanced by NAQI® NV, shall be charged to the customer.

Deliveries shall be made on roads suitable for heavy transport. The truck must not leave the normal roadway. If the customer requests to leave the normal roadway and unload at a location specified by it, this shall be at its responsibility. Any damage caused by our truck to underground pipes, manholes and other invisible objects as well as damage to lids or kerbs and driveway subsidence shall not be the responsibility of the seller. Under no circumstances can any claim be made against the seller for any damage of any nature whatsoever.

The unloading point must be designated by the customer, must not be located on public roads, and must be in such a condition that it is safely accessible to the agreed means of transport, and the quantity to be delivered can be unloaded there without any problem. Delivery must be able to take place uninterruptedly and efficiently at the unloading point. The customer shall be responsible at all times to ensure that the delivery address can be reached by the usual means of transport, and for the (timely) availability of suitable unloading facilities. If a delivery cannot be made for reasons attributable to the customer, the customer shall be liable to pay additional compensation for travel and wages.

Transport is always at the customer's expense and risk, unless explicitly specified otherwise. The risk of the goods shall pass to the customer upon delivery.

If the goods cannot be delivered due to failure to comply with the abovementioned requirements or for any other reason(s) attributable to the customer, NAQI® NV may recharge for the delivery if it has to be redelivered and, if necessary, also charge additional costs for additional inconveniences.

6. DELIVERY PERIODS

Delivery and execution deadlines are for information purposes only and shall never be binding. Unless expressly stipulated otherwise, no claim can be made to any form of damage compensation or to the termination of the contract on the grounds of non-delivery or non-performance within the agreed period if the delivery or performance does not take place within the agreed period.

As regards the delivery and execution period, without prejudice to the clause on force majeure in these General Terms and Conditions, it is expressly agreed that force majeure exists on the part of NAQI® NV, inter alia, if:

the suppliers of NAQI® NV, contrary to the agreements made, were to fail to deliver materials or products on time;
there is a strike at the supplier companies or of/own staff;
one’s own business is decommissioned beyond the control of NAQI® NV;
there is riot, insurrection, pandemic and epidemic;

The delivery periods specified by NAQI® NV shall only come into effect after written confirmation by NAQI® NV or after (partial) performance of the contract by it. NAQI® NV is not obliged to deliver the entire order at the same time.

7. OBLIGATION OF THE DISTRIBUTOR (COSMETIC PRODUCTS AND MEDICAL DEVICES)

When placing cosmetic products and/or medical devices on the market, distributors shall at all times in their activities duly observe all applicable legal provisions, including but not limited to:

Regulation (EC) no. 1223/2009 on cosmetic products (EU)

Regulation (EU) 2017/745 on medical devices (MDR) (EU)
the relevant UK cosmetics regulations and the UK MDR,
the applicable laws and regulations in other countries where the products are imported, stored, distributed or sold.

COSMETIC PRODUCTS
Before placing a cosmetic product on the market, distributors shall verify that:

all labelling particulars referred to in Section 19(1)(a), (e) and (g) and Section 19(3) and (4) of Regulation (EC) no. 1223/2009 are present;
the language requirements of Section 19(5) have been met;
the expiry date, if any, referred to in Section 19(1) has not expired;
the required notifications/registrations (including CPNP (Cosmetic Product Notification Portal) or the UK cosmetics notification system) have been completed correctly and fully by the responsible person.

If a distributor believes or has reason to believe that:

a cosmetic product does not comply with applicable regulations, it shall not make the product available on the market until it has been brought into conformity;
a product already made available on the market does not conform, it shall immediately take all necessary measures to bring the product into conformity, withdraw it from the market, or recall it.

If the product presents a risk to public health, the distributor shall immediately notify the responsible person as well as the competent national authorities of all countries concerned, clearly and fully describing the non-conformity and the corrective measures taken.
The distributor shall ensure that during the period in which cosmetic products are under its responsibility, storage, transport and trading conditions do not jeopardise legal conformity and product safety.

Upon request of competent authorities, the distributor shall fully cooperate with any measure aimed at eliminating risks posed by the cosmetic products made available on the market by it. Upon reasoned request, the distributor shall make available to the competent authorities all the information and documentation necessary to demonstrate the conformity of the product.

MEDICAL DEVICES

Before placing a medical device on the market, distributors shall verify that:

the device bears the required CE, UKCA (UK Conformity Assessed mark) or other applicable conformity marking;
a valid EU Declaration of Conformity, UK declaration or other relevant conformity documentation is available;
the labelling, instructions for use, UDI (Unique Device Identification) codes and language requirements comply with the applicable regulations in the countries in which they offer the device;
the manufacturer, authorised representative or importer is properly registered in accordance with applicable legislation.

If a distributor has reason to believe that a device is non-compliant, unsafe or may cause an incident, it shall not make the device available on the market or shall cease further distribution until the non-conformity has been remedied. If the device has already been placed on the market, it shall without delay take appropriate measures to bring the product into conformity, or withdraw it from the market, or recall it.

If the device constitutes a (potentially) serious incident or risk, the distributor shall immediately notify the manufacturer, authorised representative, importer and competent authorities of all countries concerned, clearly describing the non-conformity, the incident and the measures taken.
The distributor shall ensure during the period that devices are under its responsibility that:

storage, transport and temperature conditions comply with legal requirements and product specifications;
damage, falsification or alteration of devices is prevented;
traceability (including UDI registration) remains fully guaranteed.
At the request of competent authorities, the distributor shall cooperate in any risk reduction measure, including audits, inspections, documentation requests and recalls. The distributor shall provide all information necessary to verify the conformity of devices.

GENERAL PROVISIONS
The distributor shall maintain all required documentation, registration and traceability data carefully for the statutory retention periods and make them available to the supplier or competent authorities upon first request.
The distributor shall be liable for and shall indemnify the supplier against all damages, costs, claims, recalls or penalties arising from violations of the obligations in this clause.

8. ACCEPTANCE AND COMPLAINTS

The customer is obliged to be present at the time of delivery by NAQI® NV and to fully inspect the goods upon receipt, or when collected prior to loading the goods. Visible defects or defects in conformity which existed at the time of delivery and which the customer can reasonably determine upon inspection shall be deemed to have been accepted immediately upon delivery, unless the delivery is refused. Complaints regarding visual damage or irregularities will therefore no longer be accepted.

Complaints concerning a non-conforming delivery and/or a hidden defect that was not detectable at the time of delivery should be notified to NAQI® NV by registered letter, stating the reasons, within five working days of discovering the defect.

The use of the products or their application by the customer shall constitute final delivery and acceptance.

A legal claim based on non-conforming delivery and/or hidden defects must be brought by the customer within two months of the discovery of the defect, failing which the claim shall be inadmissible. This claim must also be brought under penalty of forfeiture within six months after delivery or completion of the works.

In case of a justified complaint, NAQI® NV has the right to either repair the good, replace the good with a similar good, or refund part of its price (corresponding to the reduction in value) to the customer, without any other liability for any direct or indirect damage.

Minor deviations in colour, design, size and weight, defects resulting from failure to comply with the washing and usage

instructions supplied with the products or as a result of use alien to the product shall not constitute grounds for complaints to be considered.

Any dispute regarding the invoice sent must be notified to NAQI® NV by registered letter, stating the reasons, within five working days of the invoice date. In the absence thereof, there shall be an irrefutable presumption that the invoice has been accepted.

Moreover, an objection shall not release the customer from its payment obligation.

9. GUARANTEE

In case NAQI® NV supplies products obtained from a third party supplier, NAQI® NV shall not be bound to provide a greater guarantee or liability than that to which the third party supplier is bound towards NAQI® NV.

10. PAYMENT

Unless expressly agreed otherwise or expressly provided otherwise in the invoice, all invoices shall be payable upfront. NAQI® NV reserves the right to charge for the goods according to the delivery, even if it is only partial, insofar as the goods have not yet been paid for.

Late payment of even one invoice shall cause other invoices, including those for which a payment period had been granted, to become immediately due and payable, without notice of default.

Late payment will also result in the forfeiture of all agreed discounts, bonuses, etc.

If the customer fails to make the agreed payments, even if they are partial payments, NAQI® NV shall furthermore be entitled to suspend performance until the customer has fulfilled its payment obligation in full, including for performance relating to other agreements with the customer. The suspension shall not constitute a ground for the customer to claim any damages.

Any invoice not paid on the due date shall, ipso jure and without notice of default, be increased by a conventional default interest rate equal to the interest rate provided for in Section 5 of the Late Payment Act of 02.08.2002, subject to a minimum of 12%. Moreover, in case of non-payment on the due date, the invoice amount will be increased by 10% by way of lump sum compensation, subject to a minimum of EUR 250 without notice of default. The aforementioned lump sum amount shall be considered as compensation for the extrajudicial collection costs caused by the non-payment and without prejudice to the creditor's right to claim compensation for other damages that are not solely caused by the non-payment.

11. RETENTION OF TITLE

All goods delivered by NAQI® NV shall remain the property of NAQI® NV until full payment of the price and additional services and costs. If the customer is in default, the goods must be returned to NAQI® NV immediately on demand and at the customer's expense, without prejudice to NAQI® NV's right to full compensation. The customer shall notify NAQI® NV if the goods are placed in a space rented by the customer and, if applicable, disclose the identity and domicile of the lessor.

In case the defaulting customer goes bankrupt, requests the application of judicial reorganisation or in any other manner ceases its activities, NAQI® NV reserves the right to reclaim the goods sold by simple request addressed to the person holding the goods in question.

12. RELEASE

NAQI® NV shall not be held liable for the consequences of a minor, ordinary and/or serious error on its part and/or on the part of its employees. NAQI® NV is only liable in case of intent.

The liability of NAQI® NV shall in any case be limited to the price specified in the agreement concluded between the parties, not exceeding the invoice value of the customer's order, and subject to a maximum of that part of the order to which the liability relates.

In addition, NAQI® NV can only be held responsible for damage directly caused by the delivered goods. NAQI® NV shall never be liable for indirect damage, including but not limited to consequential damage, lost profits, lost savings or damage to third parties.

Under no circumstances can NAQI® NV be held liable for damage arising from or caused by careless or incompetent use of the products delivered.

In case NAQI® NV supplies products obtained from a third party supplier, it shall not be bound to provide a greater guarantee than the one the third party supplier is bound to provide.

The statutory provisions on extra-contractual liability are, to the extent legally permitted, neither applicable between co-contractors nor between a co-contractor and an auxiliary person (in the first and further degree) of a co-contractor.

13. CANCELLATION AND MODIFICATION

The order placed cannot be changed, except by written agreement between NAQI® NV and the customer.

For changes notified to NAQI® NV after the conclusion of the agreement, NAQI® NV shall, if it agrees with the changes and if possible, prepare an amended quotation or order form. In that case, the document already created shall be cancelled and NAQI® NV reserves the right to draw up a new quotation possibly with different prices. Due to possible force majeure, economic and/or other changeable factors, prices may also differ in such cases for products to which no changes have been made. If the requested change(s) cannot be carried out, the original order shall nevertheless remain valid. In the case of verbal or telephone orders, the risk for the correct implementation of the change(s) shall be borne by the customer.

The customer acknowledges that changes are no longer possible once custom work has been put into production or when certain products have been ordered specifically for the customer. In this case, the customer can only place a new order on the understanding that delivery of the initial order must also be accepted and paid for.

In case of cancellation or partial cancellation of the order by the customer, for which, among other things, non-acceptance of the order shall indicate cancellation, the customer shall owe a fixed cancellation fee of 30% of the agreed price, subject to a minimum of €250, plus interest at the statutory interest rate from the date of notice of default.

Under no circumstances can the customer cancel an order for custom-made goods. The customer may in such case be obliged to accept delivery of the order and pay the purchase price, on payment of a penalty of €250 per day for which non-acceptance continues.

Return of goods is excluded unless expressly accepted otherwise in writing by NAQI® NV. Returns expressly accepted by NAQI® NV shall in any case be at the customer's expense and risk. The value of returns accepted by NAQI® NV shall be reimbursed by the latter, minus 10% as a contribution to the costs. Custom-made items and other items that do not belong to the standard product range of NAQI® NV, i.e. whose production is in accordance with different customer wishes, are excluded from return and/or exchange without exception.

14. DISSOLUTION

Each party shall have the right to terminate the agreement with immediate effect without being liable for compensation in case of bankruptcy, application for or implementation of judicial reorganisation, admission to collective debt mediation or any other form of liquidation of the other party’s assets.

In such a case, NAQI® NV shall immediately be entitled to payment for all performances and goods delivered until then, without prejudice to its right to full compensation.

The agreement may furthermore be terminated by registered letter at the expense of a party if, after seven calendar days following a registered notice of default, such party fails to make payment of the outstanding invoices, or in case of another contractual default that is established.

The dissolution shall take place on the date specified on the proof of delivery of the registered letter.

In case of unilateral breach or termination of the agreement by the customer or in case of judicial dissolution of the agreement to the detriment of the customer, a lump sum and previously agreed compensation of 30% on the agreed price shall be payable. This compensation cannot be reduced and the parties agree that these damages constitute the actual damages suffered.

If the agreement is judicially terminated to the detriment of NAQI® NV, it shall be liable to pay the same compensation to the customer.

If the customer, after having been reminded by NAQI® NV to provide adequate security for the proper fulfilment of its obligations within a reasonable period of time, and it is clear that the customer will not fulfil its obligations on time, and the consequences of such non-fulfilment are sufficiently serious for NAQI® NV, NAQI® NV shall have the right to terminate the agreement without judicial intervention and without being liable for any compensation. In this case, NAQI® NV reserves the right to recover the damages suffered from the customer.

In case of dissolution, the customer is obliged to return the goods in good condition at its own expense and risk within 3 working days returned to a location to be designated by NAQI® NV.

15. INTELLECTUAL PROPERTY

All intellectual property rights relating to the services or products supplied by NAQI® NV shall remain the property of NAQI® NV and are under no circumstances transferred to the customer.

16. PRIVACY

NAQI® NV and the customer acknowledge that the processing of personal data in the context of their contract(s) is subject to Regulation (EU) 2016/679 (GDPR).

The parties process each other's personal data as well as those of the (sub)-subcontractor(s) and other actors, their personnel, their employees, their appointees and other useful contacts. The purposes of these processing operations are the performance of the contract, customer/supplier/subcontractor management, accounting and site and/or workplace safety. The legal grounds are the performance of the contract, the fulfilment of legal and regulatory obligations and/or the legitimate interest of the relevant party.

The parties undertake to process these personal data only for the aforementioned purposes and in accordance with the provisions of the General Data Protection Regulation as well as all laws, decrees, regulations in force implementing the same. They will only forward such personal data to processors, recipients and/or third parties insofar as this is required for processing in order to fulfil the aforementioned purposes.

The parties will take appropriate precautions to protect personal data against, inter alia, unauthorised access, theft, destruction, loss, alteration, disclosure, reproduction or dissemination, whether accidental or unlawful.

The customer undertakes to impose the same obligations on the companies and organisations it calls upon.

Each party is aware of its rights of inspection, rectification, erasure and objection.

For further explanation, NAQI® NV expressly refers to its privacy policy on its website: https://naqi.com The customer confirms that it has taken note of this privacy policy and accepts its contents.

17. FORCE MAJEURE

An event of Force Majeure shall in any case be considered to include (but not limited to):

natural disasters (such as flood, storm, hurricane, lightning, snow, volcanic activity, drought, earthquake, among others);
Armed conflicts (such as war, revolution, uprising, military operation, occupation, among others);
Social unrest (such as strike, demonstration, lockout, trade conflict, among others);
Crimes (such as theft, terrorism, among others);
Disease, epidemic and pandemic;
Power and telecommunications outage;
Economic factors (such as delivery delays, changes in transport rates, shortage of (trained) labour, raw materials or fuel, etc.);
Accidents (such as fire, explosion, machinery breakdown, etc.); and
Government intervention ('le fait du prince') (such as fiscal measures, expropriation, import and export embargoes, among others).

The Affected Party shall expressly notify the other Part(y)(ies) by registered letter of the Force Majeure Event as soon as possible, but in any case no later than 5 business days from the date the Affected Party becomes aware or should reasonably have become aware of such Force Majeure Event, as well as of its intention to invoke this clause.

The Affected Party shall notify the other Part(y)(ies) as soon as possible, but in any event no later than 10 business days from the occurrence of each of (a) or (b) below:

a) in respect of an ongoing Force Majeure Event, the end of the Force Majeure Event; and

b) its ability to resume the fulfilment of its obligations under this agreement

The Affected Party shall, as soon as possible, but in any event not later than 10 business days from the abovementioned notification, produce all relevant evidence to enable the other Parties to establish the existence and impact of the alleged Force Majeure Event. Lack of timely notice or timely provision of evidence shall bar the Affected Parties from invoking the Force Majeure Event.

Performance of the obligation affected by a Force Majeure Event shall be suspended during the period in which the Force Majeure Event continues. The obligations of the Affected Party under this agreement shall be extended for the duration of this period. If the duration of the Force Majeure Event exceeds the period of 3 months, the other parties shall have the right to terminate the present agreement.

18. UNFORESEEN CIRCUMSTANCES

An 'Event of Hardship' is any change of circumstances that:

1) occurs beyond the reasonable control of the parties after the signing of this contract or becomes known to the parties and which could not reasonably be expected to occur at the time of signing this contract; and

2) upset the economic equilibrium of this contract, either because the cost of performance for the Affected Party has increased or because the value of performance obtained by the Affected Party has decreased;

The Affected Party shall expressly notify the other Part(y)(ies) by registered letter of the Event of Hardship as soon as possible, but in any case no later than 5 business days from the date the Affected Party becomes aware or should reasonably have become aware of such Event of Hardship, as well as of its intention to invoke this clause.

The Affected Party shall notify the other Part(y)(ies) as soon as possible, but in any event no later than 10 business days from the occurrence of each of (a) or (b) below:

a) in respect of an ongoing Event of Hardship, the end of the Event of Hardship; and

b) its ability to resume the fulfilment of its obligations under this agreement

Lack of timely notice or timely provision of evidence shall bar the Affected Parties from invoking the Event of Hardship.

Within 10 business days from the notification of an Event of Hardship, the affected party shall have the right to demand that negotiations be commenced with a view to reaching an agreement on alternative contractual terms that place the parties in the same contractual equilibrium as that which existed at the time the contract was concluded.

If the parties fail to reach a negotiated agreement within a period of 3 months following an Event of Hardship, the parties will appoint an arbitrator with appropriate expertise. The arbitrator shall determine what changes, if any, need to be made to this agreement to place the parties in the same contractual equilibrium that existed at the time the contract was concluded.

The parties agree that during the period of renegotiation and mediation, performance of the agreement will be suspended.

19. SALES AIDS

Furniture, equipment and/or fixtures provided on loan by NAQI® NV for presentation of goods (hereinafter referred to as sales aids) remain its property and may only be used for the presentation of products supplied directly by NAQI® NV. NAQI® NV is entitled to reclaim the sales aids upon simple request and without specifying any reason.

From the day of delivery of the sales aid, it shall be at the customer's expense and the customer shall bear all risks, expressly including the risks of theft, damage and destruction. In case of damage, the customer undertakes to compensate NAQI® NV to the extent of the replacement value of the damaged item.

20. SEVERABILITY

If any provision or part of a provision of these Terms and Conditions, or of any quotation, purchase order or agreement between NAQI® NV and the customer, should be void, invalid and/or unenforceable, this shall not affect the validity and/or enforceability of the remaining provisions or parts of provisions of these Terms and Conditions, or of any quotation, purchase order or agreement between NAQI® NV and the customer.

The provisions of the present terms and conditions, or of any quotation, order form or agreement between NAQI® NV and the customer which are affected by nullity or are invalid shall remain binding for the part thereof that is legally permissible. The relevant void, invalid and/or unenforceable provision or part of a provision shall be replaced by operation of law by a valid and enforceable provision or part of a provision that most closely approximates to the intentions of the parties.

21. FORUM CLAUSE AND APPLICABLE LAW

With the exclusion of any other legislation, any disputes between the Parties shall be governed by Belgian law. The application of the Vienna Sales Convention (CISG) and the International Convention on the Limitation Period in the International Sale of Goods of 14.06.1974 is expressly excluded.

All disputes of any kind whatsoever between the parties, including disputes relating to the application and interpretation of these general terms and conditions, fall within the exclusive jurisdiction of the Antwerp commercial courts, Tongeren division.