Terms & Conditions

CARDIFF GROUP NV. | GENERAL TERMS AND CONDITIONS Article 1. Applicability of the general terms and conditions 1.1. For the purpose of these general terms and conditions (“Terms”), the following terms have the stated meaning: ‘Cardiff Group means Cardiff Group, NV, a public limited company incorporated under Belgian law, with its registered office at Mondeolaan 2, 3600 Genk (Belgium) and enterprise number 0808.222.410. ‘Customer’ means any buyer of Cardiff Group’s goods. 1.2. These Terms apply to all proposals, offers, order confirmations and invoices of, agreements with, and deliveries of goods by Cardiff Group to the Customer. 1.3. By placing an order, the Customer acknowledges that it has read these Terms and confirms that it has accepted them in their entirety. 1.4. These Terms supersede the Customer’s general terms and conditions, Customer’s conditions of sale and/or purchasing conditions, regardless of when or how the Customer’s terms and conditions were submitted to Cardiff Group and when or how Cardiff Group submitted its Terms to the Customer. Cardiff Group’s silence to any terms and conditions supplied by Customer shall not be deemed as Cardiff Group’s acceptance of Buyer’s terms and conditions. 1.5. Cardiff Group reserves the right to regularly and unilaterally amend the content of these Terms. Any such amendment shall not apply retroactively but only to orders that are placed after such amendment. Article 2. Orders and offers 2.1. If the Customer places an order, the agreement between Cardiff Group and the Customer is formed only by Cardiff Group’s explicit acceptance of it, or because Cardiff Group has commenced the performance of the agreement. All orders are subject to written acceptance by Cardiff Group and Cardiff Group reserves the right to reject any order for any reason, or no reason at all, in its sole discretion. 2.2. All offers of Cardiff Group are without obligation until they are accepted in writing by the Customer. The agreement is formed, subject to the application of any condition precedent, if the Customer signs the offer without changing it and then returns it, within the period for acceptance, to Cardiff Group. 2.3. Orders and offers are indicative in the sense they are based on the information that is available when the order or offer is prepared. Incorrect, altered or new information or circumstances may lead to a change in the conditions and/or price. 2.4. Subsequent additional arrangements or amendments, as well as arrangements made with and/or undertakings given by personnel of Cardiff Group or on behalf of Cardiff Group by sellers, agents, representatives and other intermediaries, are binding on Cardiff Group only if Cardiff Group has confirmed them in writing. 2.5. Cardiff Group reserves the right to make changes to the composition of the goods that it delivers at any time, including, but not limited to, technical changes. Cardiff Group warrants that these changes will not impair the functional properties of the goods. 2.6. If goods are manufactured based on the Customer’s specifications (“Custom Goods”), the Customer shall provide the necessary information (regarding the design, materials, etc.) to Cardiff Group correctly and in due time, failing which Cardiff Group shall be entitled to deliver a general good to the Customer and be paid for such general good instead of the Custom Good. For any such Custom Good (i) Cardiff Group’s warranty, if any, shall not apply; (ii) Cardiff Group explicitly disclaims any and all liability for design or manufacture defect; and (iii) the Customer shall indemnify, defend, and hold Cardiff Group harmless for any and all damages related to the Custom Good. “Damages” for purposes of these Terms shall mean all damages of any kind including, but not limited to, direct, indirect, special, consequential, punitive, costs, expenses, and attorneys’ fees, relating to any proceedings, claims, lawsuits, or in enforcing this provision. Article 3. Performance 3.1. Cardiff Group shall make all reasonable efforts to deliver the goods with due care and in accordance with these Terms, as well as with any special conditions that have been included in writing in the agreement with the Customer. 3.2. The Customer shall ensure that Cardiff Group possesses all the information and facilities it needs to be able to deliver the goods correctly. 3.3. Stated delivery periods and lead times are always indicative and not binding on Cardiff Group. If a delivery is delayed, the Customer is not entitled to compensation, a price reduction, to suspend payment or terminate the agreement. In the absence of any agreement to the contrary, deliveries are deemed to be made Ex Works (as “Ex-Works”/ EXW is defined by Incoterms 2010). The method and agency of transportation and routing will be designated by Cardiff Group. All risk of loss during shipment is borne entirely by the Customer and Cardiff Group shall not have any liability to the Customer for such loss. By accepting these Terms, the Customer agrees to waive any and all right it might otherwise have, but for this provision, to file a lawsuit against Cardiff Group for any such loss. 3.4. Any specific shipping date designated in writing signed by Cardiff Group shall be interpreted as estimated and shall not be construed as falling within the meaning of “time is of the essence”. Cardiff Group shall not be liable for any delays in delivery caused by force majeure. “Force majeure” shall mean any and all conditions beyond the control of Cardiff Group, including but not limited to, (a) accidents to or malfunctions of Cardiff Group’s or Cardiff Group’s subcontractors’ or suppliers’ machinery; (b) differences with employees, strikes, or labor shortage; (c) fire, floods, hurricanes or other natural disaster; (d) supplier or subcontractor delays, including any quantity or quality defects; (e) delays caused by an instrumentality of the United States Government or any government or any agency; (f) delays in transportation; (g) restriction imposed by any governmental regulation, whether valid or invalid; or other cause beyond the control of the Cardiff Group. Article 4. Fee 4.1. The price for Cardiff Group’s services may be invoiced on a variable or fixed-price basis, depending on the agreement between the Parties. 4.2. Travel to and from the place where the services are provided is not included in the price. The amount payable for travel is determined based on Cardiff Group’s prevailing rates. 4.3. Unless stated otherwise, prices exclude any present or future federal, state or local property, sales, use, excise, license, duties, transportation, value added tax, or other taxes which may be applicable to, imposed on, or result from this agreement. The Customer agrees to pay any such taxes and indemnify, defend, and hold Cardiff Group harmless against any and all damages related to non-payment of such taxes. 4.4. Cardiff Group is entitled to charge costs for price changes, including prices for unprocessed materials, auxiliary materials, labor costs, currency conversion costs, taxes, levies, etc. 4.5. The Customer shall not be entitled to suspend its payment obligations to Cardiff Group, claim any right to compensation and/or to offset its payment obligations with any obligations of Cardiff Group to the Customer. Article 5. Transfer of ownership 5.1. In order to protect and secure payment of all debts due and owing from the Customer and until Cardiff Group has been paid in full, the Customer hereby grants to Cardiff Group a security interest in the goods, and all proceeds and all accounts receivables resulting from the sale of the goods. In connection therewith, the Customer hereby authorizes Cardiff Group to take all necessary steps to file such financing statements and exhibits with the proper authorities, including the filing of a UCC-1 financing statement. 5.2. Until the Customer has paid for the goods in full, the Customer shall not pledge, mortgage, encumber, or create or suffer to exist a security interest in the goods in favor of any person other than Cardiff Group unless advance written approval of such other security interest is given by Cardiff Group. Additionally, the Customer agrees to keep the goods insured to their full value until payment is received by Cardiff Group. In the event the Customer sells the goods to a third party before payment in full is received by Cardiff Group, the Customer agrees to secure its security interest in the goods at the time of sale to its customer in order to protect Cardiff Group’s interests to the greatest extent possible. 5.3. The Customer is obliged to take receipt of the goods upon delivery, unless the Parties have expressly agreed that Cardiff Group will store the goods at the Customer’s expense and risk. 5.4. Unless agreed otherwise, the failure to take receipt of goods upon delivery places the Customer in default by operation of law and without any further warning. When applicable, Cardiff Group is entitled to store goods at the Customer’s expense and risk. All costs arising from the above circumstances, including storage, are payable by the Customer. Article 6. Intellectual Property rights 6.1. All intellectual property rights to, ownership of, and interest in all goods, trademarks, trade names, logos, distinctive marks, designs, and other materials created and/or made available by the Seller hereunder or within the framework of the relationship between the Customer and Cardiff Group (the “Intellectual Property”) are vested exclusively in Cardiff Group. The Customer shall not reproduce, modify, transfer, grant, assign, license or use the Intellectual Property, except in accordance with these Terms. The Customer shall not remove or alter indications concerning Intellectual Property rights from the goods and other materials created and/or made available by Cardiff Group to the Customer. 6.2. The Customer undertakes not to do anything that impairs, could impair, or in any other way adversely affect Cardiff Group’s rights in the Intellectual Property. 6.3. If an actual or alleged infringement of Cardiff Group’s Intellectual Property rights occurs, Cardiff Group will be entitled to suspend all or part of its performance of the agreement or to terminate the agreement. Article 7. Liability 7.1. CARDIFF GROUP DISCLAIMS ANY LIABILITY FOR CONSEQUENTIAL, INCIDENTAL, AND CONTINGENT DAMAGES; PROPERTY OR PERSONAL INJURY DAMAGES; SPECIAL OR PUNITIVE DAMAGES; DAMAGES FOR LOST PROFITS; OR FOR ANY OTHER TYPES OF ECONOMIC LOSS RELATED TO THE GOODS. 7.2. Cardiff Group is not liable for errors in performance that are attributable to inadequate or incorrect input from the Customer or third parties, or to the incorrect use of the goods by the Customer or third parties. 7.3. Cardiff Group’s liability in relation to goods that are delivered to the Customer is limited in any case to either refunding the price paid by the Customer or delivering the goods again, at the Customer’s discretion. Cardiff Group’s total liability will never exceed the price paid to it by the Customer for the goods that have given rise to the loss event. 7.4. The Customer shall indemnify, defend, and hold Cardiff Group harmless from and against all Damages directly or indirectly relating to or arising out of the acquisition, use, purchase, shipment, transportation, delivery, lease or sublease, ownership, operation, possession, control, storage, return or condition of the goods based on the Customer’s acts or omissions, or the Customer’s failure to comply with these Terms. The foregoing indemnity shall cover, without limitation, any claim for negligence, gross negligence, or liability in tort. Article 8. Payments/invoicing 8.1. Unless agreed otherwise, payment shall be made prior to the delivery of the goods. Payment must be made in Euros, without any deductions or discounts. 8.2. Notwithstanding paragraph 8.1 of this article, Cardiff Group is entitled to invoice the goods upon delivery. Any storage costs will be invoiced separately. 8.3. If the Customer fails to make payment of an invoice by the due date, it will be liable, by operation of law, to pay Cardiff Group default interest of 12% plus a fixed penalty of 10% of the invoice amount, subject to a minimum of EUR 125.00, from the date of the demand to the date of payment in full.. Cardiff Group has the right to refuse to deliver the goods if the Customer is past due on any of its debts to Cardiff Group. Furthermore, for any goods for which payment is past due, Cardiff Group shall have the right to retake all such goods immediately. In such case, the Customer agrees to make all such goods available, shipping ready, for Cardiff Group, within five (5) days of receiving notice from Cardiff Group of its intention to retake the goods. 8.4. In the event of past due payment, the Customer shall pay all of Cardiff Group’s costs of collection of any amounts past due, including, but not limited to, attorneys’ fees, court costs, witness fees, travel and lodging. Cardiff Group will be entitled to apply payments made by the Customer first to pay those claims it deems appropriate, including interest, late charges, and costs of collection. 8.5. Any delay in payment by the Customer makes all outstanding amounts immediately due and payable and nullifies any payment terms and/or granted discounts. 8.6. If an invoice is not paid by due date, Cardiff Group will be entitled to suspend its work in relation to the Customer’s order until the Customer has complied with its payment obligations. 8.7. Each payment is allocated to the oldest outstanding invoice, and firstly to the interest and costs that are payable. 8.8. If the order has been placed by more than one customer, all Customers will be jointly and severally bound by the obligations under these Terms, and more specifically those contained in this article. Article 9. Cancellation of the order 9.1. Subject to Sections 9.2 and 9.3 herein, the Customer may cancel an order insofar as Cardiff Group has not yet commenced with the performance of the agreement, subject to payment of compensation of thirty percent (30%) of the agreed price with a minimum of $500.00. Once the goods have been shipped, the order can no longer be cancelled. 9.2. The Customer must cancel any order by registered letter. The cancellation is valid only if it has been expressly accepted by Cardiff Group in Cardiff Group’s sole discretion. 9.3. If the Customer cancels the order, any advance payments that have been made will never be refunded. Article 10. Warranty; Inspection; Complaints 10.1. Cardiff Group warrants that the goods sold or provided to the Customer are produced according to usual practices, customs, standards, specifications and tolerances of trade prevailing in the country of origin at the time of production and shall, subject to the limitations and exclusions set forth below, be free from defects in design, material, and workmanship for a period of one (1) year from the date of delivery to the Customer. 10.2. Cardiff Group’s warranty is as set forth in Section 10.1. CARDIFF GROUP DISCLAIMS ANY EXPRESS WARRANTY NOT PROVIDED THEREIN AND ANY IMPLIED WARRANTY, GUARANTY OR REPRESENTATION AS TO PERFORMANCE, QUALITY AND ABSENCE OF HIDDEN DEFECTS, WHICH BUT FOR THIS PROVISION, MIGHT ARISE BY IMPLICATION, OPERATION OF LAW, CUSTOM OF TRADE OR COURSE OF DEALING, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 10.3. Visible defects in delivered goods, or defects in quantity or type of delivered goods, must be reported to Cardiff Group by means of registered letter post-marked within five (5) business days of delivery of the goods. If the objection is not made on time, the goods are deemed to have been definitively accepted and payment will be due. 10.4. If goods are used and/or resold, they will be deemed to have been definitively accepted and payment will be due. 10.5. Hidden defects in delivered goods must be reported to Cardiff Group by means of registered letter within five (5) business days of the Customer’s discovery of the hidden defect, or from when the Customer should have discovered the defect, and in any case no later than one (1) year after the delivery of the goods. Any modification, intervention or changes made or implemented after the Customer discovers the defect, but before Cardiff Group has had the opportunity to confirm the defect for itself, forfeits of any right of recourse against Cardiff Group by operation of law. 10.6. If an objection is made, the Customer must keep the goods in question available for inspection by Cardiff Group. The Customer is obliged to cooperate in any examination of the goods by Cardiff Group. 10.7. An objection shall not give rise to the right of the Customer to suspend or offset payment or other obligations owed by the Customer to Cardiff Group. 10.8. Goods may be returned only after Cardiff Group has given its prior and written consent, and under such further conditions that it sets, including in relation to the costs and return method. If goods are returned without Cardiff Group’s consent, the goods will be dispatched and stored at the Customer’s risk and expense. 10.9. Any objection concerning invoices must be made to Cardiff Group by means of a reasoned and registered letter within eight (8) business days. This period starts to run from the invoice date. If the objection is not made on time, the invoices are deemed to have been definitively accepted and payment will be due. Article 11. Force Majeure 11.1. Cardiff Group is not obliged to comply with any obligation if it is prevented from doing so by Force Majeure. 11.2. In such situations, Cardiff Group is released from its obligations for the duration and scope of the Force Majeure, without the Customer being entitled to any price reduction, compensation, or recourse against Cardiff Group of any kind. Article 12. Recalls 12.1. The Customer shall cooperate in any recall of goods by Cardiff Group by promptly complying with any reasonable request by Cardiff Group relating to such recall. 12.2. If Cardiff Group announces a recall, the Customer shall return the relevant good immediately if it is still in its possession. Cardiff Group shall refund the Customer the invoiced amount of the returned item and the costs of returning it. Article 13. Termination of the Agreement 13.1. Cardiff Group shall have the right to terminate the agreement without any prior notice, (i) if the Customer is declared insolvent, (ii) files a voluntary bankruptcy petition or is subject to an involuntary bankruptcy petition; (iii) is insolvent, as determined in Cardiff Group’s sole discretion; (iv) files for dissolution; or (v) or sells substantially of its assets outside the ordinary course of business. In the event Cardiff Group terminates the agreement in accordance with this Section, it shall have no liability to the Customer whatsoever. 13.2. If the Customer commits a material breach of this agreement and fails to remedy this breach (as determined in Cardiff Group’s sole discretion) within eight (8) days of receipt of a written notice of default sent by registered post, Cardiff Group shall be entitled to either (i) suspend the agreement until the Customer complies with its obligations, or (ii) terminate the agreement with immediate effect. The failure to pay one or more invoices on their due date will always be regarded as a material breach. Article 14. Assignment of rights and obligations 14.1. Cardiff Group is entitled to assign its rights and obligations under the agreement with the Customer, as well as to transfer the ownership of its assets, to a third party. 14.2. The Customer is not entitled to assign its contractual rights and obligations, unless Cardiff Group gives its express, written and prior consent. If the Customer nevertheless assigns its contractual rights without the Cardiff Group’s consent, the Customer shall always remain jointly and severally liable towards Cardiff Group for all obligations under the agreement. Article 15. Invalidity 15.1. If it transpires that one of the articles of these Terms is invalid, the Parties agree to replace this provision with a valid provision that approximates the intention and scope of the invalid provision as closely as possible. This replacement provision will then apply. Article 16. Duty of confidentiality 16.1. The Parties undertake to maintain the secrecy of the commercial information, technical information and trade secrets that they become aware of from the other Party, even after the termination of the agreement, and to use such information and secrets only for the performance of the agreement. Article 17. Applicable law – competent court 17.1. Belgian law applies to the agreements of Cardiff Group. Any dispute relating to the conclusion, validity, performance and/or termination of this agreement will be settled by the competent court for the judicial district in which Cardiff Group has its registered office..