ARTICLE 1: AREA OF APPLICABILITY

1.1        Unless explicitly agreed otherwise in writing, the offering, sale and delivery of all goods and/or services by ROAM TECHNOLOGY NV, located in Belgium, Geleenlaan 24, Industry Zone 6835, BE-3600 Genk and registered under VAT-number/company-number BE0425.767.642 (hereinafter referred to as ROAM TECHNOLOGY) for a natural or legal person (hereinafter referred to as the Buyer) shall be governed by the present general terms and conditions of sale (henceforth “General Terms and Conditions”)

1.2        Other conditions or stipulations mentioned on forms or documents issued by the Buyer (including but not limited to their general terms and conditions), are not applicable unless expressly agreed in writing by ROAM TECHNOLOGY. In the event that explicit preference is given in writing to the terms and conditions of Buyer or to any special agreement whatsoever, the following terms and conditions shall remain valid in a supplementary way.

1.3        By entering into any and all agreement with ROAM TECHNOLOGY, the Buyer declares to have received a copy of these General Terms and Conditions and accepts these General Terms and Conditions.

1.4        These General Conditions apply to the entire contractual relationship between the parties, including individual purchase orders or contracts for specific goods or services. Deviations, additions or modifications of these General Conditions shall not be effective unless expressly agreed in writing between the parties.

1.5        ROAM TECHNOLOGY reserves the right to amend its general terms and conditions of sale at any time. New or amended general terms and conditions shall apply from the sixtieth (30th) day after they were made known to Buyer.

1.6        The Buyer declares that they know and understand the meaning of all technical terms used in these General Terms and Conditions, as well as any possible additions to them and those used in the offer and/or order confirmation.

ARTICLE 2: RELATIONSHIP BETWEEN THE PARTIES

2.1        Buyer does not have the right to bind ROAM TECHNOLOGY in relation to third parties or to enter into any agreement in the name of or for the account of ROAM TECHNOLOGY, except where ROAM TECHNOLOGY has expressly requested and authorised Buyer to do so in writing.

Article 3: OFFERS AND ORDERS

3.1        Offers of ROAM TECHNOLOGY shall not be binding and are merely invitations to enter into contracts. A contract is only concluded if an order of the Buyer has been expressly accepted by ROAM TECHNOLOGY. If the order confirmation contains any change or addition or differs in any way to the order from the Buyer, it is binding for the Buyer unless they declare that they do not agree with it within 5 days after receiving the order confirmation.

3.2        The weights, measurements, capacities and other details that are included in catalogues, advertisements, depictions, and price lists are only meant to be approximations. These details only bind ROAM TECHNOLOGY in so far as this is explicitly stated.

3.3        The Buyer shall be responsible for the accuracy of any order submitted by himself. Buyer shall also be responsible to give ROAM TECHNOLOGY any necessary information relating to the goods or services within a sufficient time to enable ROAM TECHNOLOGY to perform the individual contract in accordance with its terms.

3.4        Accepted orders are considered to be binding for the Buyer. The Buyer shall have no right to cancel orders without written permission of ROAM TECHNOLOGY. This permission shall depend upon the payment of all damages caused by the cancellation.

If the Buyer cancels or terminates the order, the damage to ROAM TECHNOLOGY will be estimated at at least 30% of the price, without prejudicing ROAM TECHNOLOGY’ right to prove any higher damages or to demand that the agreement is implemented. A statutory interest rate of 10% of the compensation amount will be payable from the date of notice of default of payment for this damage.

3.5        All changes to an order have to be made in writing and in time. In the event ROAM TECHNOLOGY already started partial or full execution of the order (including ordering of raw material or other ingredients), Buyer cannot withhold the non-execution of the changes.

3.6        ROAM TECHNOLOGY retains the right to suspend the execution of an order if the Buyer’s account at ROAM TECHNOLOGY shows that the Buyer is in default of any payment obligation to ROAM TECHNOLOGY or its subsidiaries or if the Buyer demonstrates to be insolvent. In the event of a refusal to take possession of an order or if there is a delay in the delivery as a result of a suspension of an order for which the Buyer is directly or indirectly responsible, storage costs will be charged to the Buyer, without prejudicing ROAM TECHNOLOGY’s right to cancel the Sales Agreement.

3.7        Subject to notice of thirty (30) days, ROAM TECHNOLOGY shall be entitled, except in a case of force majeure, government order or amended legislation, to discontinue the manufacture or sale of one or more Products or packaging, or to make changes to the type, design or model thereof. In such cases ROAM TECHNOLOGY shall not be under obligation to make such changes to Products already held or ordered by Buyer. Buyer cannot hold ROAM TECHNOLOGY liable for any changes within the meaning of this Article and shall not have any recourse against ROAM TECHNOLOGY for its discontinuation of the supply of Products or Packaging of the type, design or model previously sold by ROAM TECHNOLOGY.

ARTICLE 4: PRICES

4.1        The price is as stated in the quotation and/or order confirmation and/or in accordance with agreed upon price lists, to the extent applicable. Price calculations or offers are indicative and non-binding until formally accepted. In no event shall prices confirmed by ROAM TECHNOLOGY for one order be binding for subsequent orders, unless it concerns orders within a larger framework agreement. These prices are always subject to possible increases if this is a result of the evolution of their fixed and/or variable costs (e.g.: wages and other social security contributions, costs of material, processing costs, energy costs, ex-change rates, etc.).

4.2        The prices exclude transport costs (if applicable), loading or unloading costs, insurance costs, packaging costs, VAT, levies, import and export duties, etc., unless explicitly stated otherwise in writing.

Parties can agree that ROAM TECHNOLOGY should provide packing, transport packaging, loading, transport, unloading, insurance, of goods. In that case Buyer will bear the cost thereof.

4.3        If the delivery term, the place of delivery, or the circumstances of the delivery change at the request of the Buyer, or if the Buyer has provided incorrect information to this end, ROAM TECHNOLOGY is entitled to payment of the additional costs incurred.

4.4        ROAM TECHNOLOGY can postpone, delay any (partial) order/delivery if the previous order/delivery is not fully paid. ROAM TECHNOLOGY can demand that each (partial) order/delivery is fully paid before any subsequent (partial) order/delivery is shipped.

4.5        The Buyer cannot set off any of its claims against any debt towards ROAM TECHNOLOGY.

ARTICLE 5: PAYMENT

5.1        ROAM TECHNOLOGY’s invoices are payable to ROAM TECHNOLOGY’s designated bank account at the latest on the due date indicated on the respective order or in the relevant invoices. The invoice has been settled when the complete amount stated on the invoice has been received on ROAM TECHNOLOGY’s designated bank account as indicated on the front of the invoice.

5.2        All invoices from ROAM TECHNOLOGY are to be paid in the indicated currency. When the payment is done in a different currency, the conversion will be calculated with regards to the highest rate, either at the rate of the invoice date or the date of payment. All bank and exchange costs connected to the collection of the amount will be charged to the Buyer. Representatives are not authorized to receive payments.

5.3        Invoices that are not disputed by registered letter within eight days after their issuing will be considered to have been fully accepted.

5.4        If the Buyer fails to pay in full any invoice by the due date, or fails to pay in full any other payment due to ROAM TECHNOLOGY under any agreement between parties and/or these General Terms and Conditions by the due date for payment, then:

(a) the Buyer shall pay interest on the overdue amount at the rate of 10% per annum (except that if the legal rate of interest is higher, it shall be applied). Such interest shall accrue on a daily basis from the due date until the date of actual payment of the overdue amount. The Buyer shall pay the interest together with the overdue amount; and

(b) the Buyer shall pay ROAM TECHNOLOGY 10% of the outstanding balance, with a minimum amount of 250,00 EUR for costs associated with a.o. the collection of the amounts due and with the adverse consequence on ROAM TECHNOLOGY’s cash flow, as liquidated damages. The parties confirm that this sum represents a genuine pre-estimate of ROAM TECHNOLOGY’s loss. This paragraph is without prejudice to ROAM TECHNOLOGY’s right to prove and claim any higher damages.

5.5        Late, incomplete or non-payment of one expired invoice will cause all other invoices, for which a particular instalment term has been agreed on, to become immediately payable, without previous notice of default. Interest for late payment is due as from the moment that the non-expired invoices become payable. Liquidated damages may in addition be due in accordance with clause 5.4(b). Partial payments will firstly be deducted from interest due, liquidated damages payments and possible costs and only then from unpaid invoices.

5.6        Any use of promissory notes, cheques or permission to draw a bill to cover the agreed upon price shall never be regarded as a renewal of the debt of the original invoice, nor will it limit or alter any ‘right of retention’, agreement or territorial jurisdiction

5.7        ROAM TECHNOLOGY is entitled to suspend or postpone its obligations in connection with other current contracts between the parties to the extent that the Buyer has not complied with a payment condition or other obligation. ROAM TECHNOLOGY reserves the right to suspend delivery of any goods or services until the Buyer’s credit is back within the agreed limits or until the Buyer complies with such payment condition or other obligation. Delays in payment by the Buyer of (certain advances on) the price may give rise to a proportionate delay in the delivery term.

5.8        In the event of late payment, ROAM TECHNOLOGY is entitled to demand the dissolution of the agreement, to proceed to extrajudicial dissolution (without prior notice of default being required), or according to ROAM TECHNOLOGY’s choice to request the enforced implementation of the agreement, all without prejudice to ROAM TECHNOLOGY’s right to compensation by (early) termination of the agreement. This damage will be fixed at a lump sum of 75% of the remaining amount without prejudice to ROAM TECHNOLOGY’s right to prove and claim higher compensation.

ARTICLE 6: RETENTION OF TITLE – RISK

6.1        The delivered goods will remain property of ROAM TECHNOLOGY until full payment by the Buyer of the price for these goods, as well as interests and liquidated damages, if applicable. If the Buyer has not yet (completely) paid the purchase price, the Buyer will notify third parties (for example a curator, insolvency administrator and creditors) of ROAM TECHNOLOGY’s retention of title by registered letter each time this is required by the circumstances, including but not restricted to the situation wherein a third party is threatening to seize or has seized the goods. The Buyer will inform ROAM TECHNOLOGY of this immediately by registered letter. The Buyer warrants (if necessary on behalf of a third party (buyer) or holder) that ROAM TECHNOLOGY shall be notified of the location of the goods at its first request and that they shall be made available to ROAM TECHNOLOGY again at the expense and risk of the Buyer if ROAM TECHNOLOGY so requests. For as far as is necessary, ROAM TECHNOLOGY shall be granted both an irrevocable mandate for repossession, and a mandate to enter the premises for this purpose.

6.2        The Buyer is not entitled to dispose of the goods in the event the related purchase price has not been paid in full. In the event the Buyer sells or otherwise transfers the goods, in breach of this clause, the Buyer’s claim for payment towards its customer shall be automatically assigned to ROAM TECHNOLOGY, ROAM TECHNOLOGY hereby accepting such assignment. The Buyer shall inform its customers of the assignment to ROAM TECHNOLOGY and shall provide to ROAM TECHNOLOGY all information and documents on the collection of the claims.

6.3        The Buyer shall take appropriate insurance on the delivered goods with a reputed insurance company for damage, losses, depreciation, devastation and theft, and provide ROAM TECHNOLOGY proof hereof at first request. The Buyer assigns his insurance claims from damage, losses, depreciation, devastation and theft from the goods to ROAM TECHNOLOGY, ROAM TECHNOLOGY hereby accepting such assignment.

6.4        The risk attached to the sold goods will pass to the Buyer at the moment of delivery EXW (EXW ICC Incoterms® 2010 ) at ROAM TECHNOLOGY’s designated warehouse in Belgium or elsewhere.

6.5        As far as this clause concerning the retention of title is not in accordance with other clauses agreed upon between the parties, then this clause shall prevail.

ARTICLE 7: DELIVERY

7.1        Unless otherwise agreed in writing, delivery of goods shall be Ex Works (EXW) at ROAM TECHNOLOGY’s premises or other appointed location (Incoterms 2010 rules), even if delivery is handled by ROAM TECHNOLOGY in which case ROAM TECHNOLOGY only acts as mandatary of the Buyer.

7.2        Dispatch and transport will take place at the Buyer’s risk, irrespective of the way in which the transport is organized. The Buyer can have the goods insured at their own expense and is obliged to inspect the equipment upon receipt and to exercise their right of recourse against the conveyor within the required time limit.

7.3        The presumptive delivery date will be agreed upon when the order is placed. ROAM TECHNOLOGY or its representative will use reasonable endeavors, to deliver the ordered goods or services on time. The Buyer acknowledges that, unless explicitly agreed otherwise in writing, the delivery date for goods or services is indicative. Non-compliance with the indicative term shall not in any event give cause for cancellation of or entitlement to compensation, unless explicitly agreed otherwise in writing.

7.4        ROAM TECHNOLOGY may deliver the goods in one or several deliveries. Each delivery shall constitute a separate contract and shall be invoiced and paid for separately.

ARTICLE 8: COMPLAINTS & WARRANTY

8.1        When the Buyer is a ROAM TECHNOLOGY’s distributor (henceforth the “Distributor”), the Distributor undertakes to ensure a traceability system of the goods by maintaining suitable record of the goods reference, lot or serial number, quantity and customer information.

The Distributor must report to ROAM TECHNOLOGY within 48 hours after the event, any incident communicated by its customers, end-users or service agents and/or by local authorities involving an injury or potential injury of a patient or user and related to the use of the goods. The Distributor must report to ROAM TECHNOLOGY within one (1) business week from being informed, any complaint, malfunction or defect related to the goods communicated by its customers, end-users or service agents

8.2        If any Products exhibit visible defects Buyer shall notify ROAM TECHNOLOGY of such defects in writing within eight (8) days of delivery. If such notification is not received within the aforementioned period, Buyer shall be deemed to have accepted the Products. Buyer shall keep Products with visible defects available for inspection by ROAM TECHNOLOGY. ROAM TECHNOLOGY shall check and examine the Products and investigate the complaint within eight (8) days of receiving a sample of the Product notified as defective. The costs of such examinations shall be payable by ROAM TECHNOLOGY if the claim of the defect is found to be legitimate.

8.3        In the case of latent/invisible defects of the Products, Buyer shall notify ROAM TECHNOLOGY of such defects in writing within eight (8) days of discovery of the defect.  If such notification is not received within the aforementioned period, Buyer shall be deemed to have accepted the Products. Buyer shall keep Products with latent defects available for inspection by ROAM TECHNOLOGY. ROAM TECHNOLOGY shall check and examine the Products and investigate the complaint within eight (8) days of receiving a sample of the Product notified as defective. The costs of such examinations shall be payable by ROAM TECHNOLOGY if the claim of the defect is found to be legitimate.

8.4        In the case of defects in a Product, ROAM TECHNOLOGY shall at its sole discretion reimburse the Price of the Product paid by Buyer, or shall replace the Products at its expense. In all cases in which ROAM TECHNOLOGY is obliged to pay damages, these will never be higher than, at its option, either the invoice value of the good delivered whereby or in connection with which the damage was caused, or, if the damage is covered by an insurance policy of ROAM TECHNOLOGY’s, the amount that is actually paid out by the insurer with respect thereto.

8.5        ROAM TECHNOLOGY shall not be responsible for any other loss of the Buyer or any third Party, including but not confined to consequential loss or damage. ROAM TECHNOLOGY is never obliged to pay substitute or additional damages except if and insofar as the damage suffered was inflicted intentionally or by the gross negligence of ROAM TECHNOLOGY or its own employees. In that case ROAM TECHNOLOGY liability for loss of profits, consequential or indirect damages is, however, at all times excluded, except in the case of intention on the part of ROAM TECHNOLOGY itself.

8.6        ROAM TECHNOLOGY warrants Buyer that the Products are fit for purpose and comply with the mandatory standards ap­plicable to the Products. ROAM TECHNOLOGY does not give Buyer any further warranties or guaranties concerning the Products. The maximum warranty/guarantee period is 12 months after delivery.

8.7        Nothing in these General Terms and Conditions shall limit or exclude ROAM TECHNOLOGY’s liability for any liability which may not be limited or excluded by applicable law. Subject to the above, any right to a guarantee regarding the Products lapses if:

• the directions given by ROAM TECHNOLOGY for usage, storage, testing and/or maintenance are not followed exactly;
• the delivered goods are used improperly or other than in conformity with the agreed to purpose;
• Buyer, or third Parties not brought in by ROAM TECHNOLOGY, have performed operations on the goods delivered by ROAM TECHNOLOGY without ROAM TECHNOLOGY’s permission;
• Buyer does not respect any restrictions agreed upon by parties;
• Buyer has not fulfilled one or more of its obligations toward ROAM TECHNOLOGY arising from the underlying agreement, or has not fulfilled them adequately or on time.

8.8        Any claim toward ROAM TECHNOLOGY, except those recognized by ROAM TECHNOLOGY or those that laps sooner, lapses after a period of 2 months from the time the claim arose if a claim has not been set within this timeframe.

8.9        ROAM Technology Products may be used under the strict user-instructions of ROAM TECHNOLOGY. Buyer will see to it that it has obtained a specific separate manual with the “(end-)user-instructions” from ROAM TECHNOLOGY for each separate application for which he intends to sell the Products. Buyer will see to it that it will distribute these user-instructions to its customers at the latest at delivery of the Products to its customers.  ROAM TECHNOLOGY is not responsible or liable for any damages resulting to any Party from sales and use of the Products against and/or without full respect of the specific application user-instructions.

8.10      Buyer shall be solely responsible for ensuring that the labelling and packaging of Products comply with the laws and regulations applicable in the Territory. ROAM TECHNOLOGY shall never be liable in any way whatsoever for any violation of such laws and regulations. If such laws and regulations increase the costs of labelling and packaging, Buyer shall pay those costs. The prince includes the costs of a standard label.

ARTICLE 9: INTELLECTUAL PROPERTY

9.1        All registrations of the trade names/trademark Roam Technology NV, HUWA-SAN, HUWA-SAN AGRO, HUWA-SAN VET, HUWA-SAN F&B, HUWA-SAN WT, HUWA-SAN HS, HUWA–SAN H@H, HUWA-SAN POOL, or any other trade name/trademark that includes the name HUWA-SAN, or under which the Product is sold, shall be made in the name of ROAM TECHNOLOGY.  The Buyer shall not use ROAM TECHNOLOGY’s company name, ROAM TECHNOLOGY’s product names or ROAM TECHNOLOGY’s product trademarks as part of Buyer’s name or in any manner capable of misrepresenting the relationship between Buyer and ROAM TECHNOLOGY.

9.2        If the Buyer is a Distributor, the Buyer may represent itself as an “Authorised Buyer” of ROAM TECHNOLOGY, and may use ROAM TECHNOLOGY’s Product names and ROAM TECHNOLOGY’s Product trademarks and Product related trademarks on signs or other advertising or promotional material. Buyer’s licence to use ROAM TECHNOLOGY’s name and trademarks is limited and Buyer shall abide by restrictions and limitations imposed by ROAM TECHNOLOGY from time to time.

9.3        The Buyer shall not alter, remove or tamper with the brands, trademarks, or other means of identification on the Products. If the Buyer so requests the packaging of the Products delivered under this Agreement shall contain any specific references required by local laws. The costs incurred by ROAM TECHNOLOGY in attaching such references shall be paid by Buyer.

9.4        The Buyer shall sell the Product only under the name/brand indicated by Roam Technology or any other name/brand stipulated by ROAM TECHNOLOGY. The Buyer shall not sell the Product under any other name/brand without the prior written consent of ROAM TECHNOLOGY. The Buyer represents and accepts that all trade names, trademarks, logos, signs, domain names, copyrights, trade secrets and any other intellectual property rights attached to the Products are and shall always remain the exclusive property of ROAM TECHNOLOGY.

ARTICLE 10: FORCE MAJEURE

10.1      Parties shall not be held responsible for non-performance caused by war, civil war, rebellion, revolution, insurrection, military or usurped power or confiscation, terrorist activities, nationalization, government sanction, blockage, embargo, riot, crime, fire, explosion, act of God (events such as natural disaster, etc.), labour troubles, strikes or lockouts or interruption, unavailability of raw materials, in case of governmental order or legal measure, or any other cause of whatsoever kind similarly beyond such non-performing Party’s reasonable control, provided that the non-performing Party uses its best efforts to cure the cause of such non-performance.

10.2      If the reason for the non-performance lasts more than sixty (60) days, either Party may terminate the Agreement subject to giving the other Party written notice of ten (10) days and without owing the other Party any kind of compensation.

ARTICLE 11: CONFIDENTIALITY

11.1      The Buyer undertakes to keep confidential and not to divulge to any third party any confidential information, reports, records or other restricted documents concerning ROAM TECHNOLOGY or its activity which they have received or obtained. The Buyer shall ensure that its directors, employees, agents and other intermediaries are bound by a similar duty of confidentiality. Reproductions or use of this information for unlawful or unallowed purposes is punished by law and will be prosecuted.

11.2      If so requested by ROAM TECHNOLOGY for any given reason, the Buyer shall immediately return to ROAM TECHNOLOGY any documents containing restricted information about the Products, the market, sales of the Products, ROAM TECHNOLOGY, or its business, etc. provided by ROAM TECHNOLOGY.

ARTICLE 12: OTHER PROVISIONS

12.1      No waiver:

Any failure or delay by ROAM TECHNOLOGY in exercising any right under an agreement and/or these General Terms and Conditions with the Buyer, any single or partial exercise of any right under such agreement and/or these General Terms and Conditions or any partial reaction or absence of reaction by ROAM TECHNOLOGY in the event of violation by the Buyer of one or more provisions of such an agreement and/or these General Terms and Conditions, shall not operate or be interpreted as a waiver (either express or implied, in whole or in part) of ROAM TECHNOLOGY’ rights under such agreement these General Terms and Conditions or under the said provision(s), nor shall it preclude any further exercise of any such rights. Any waiver of a right must be express and in writing. If there has been an express written waiver of a right following a specific failure by ROAM TECHNOLOGY, this waiver cannot be invoked by the Buyer in favour of a new failure, similar to the prior one, or in favour of any other kind of failure.

12.2      Notices:

Any notice to be given under General Terms and Conditions shall be deemed duly given when sent by e-mail and postage prepaid or courier and addressed to the other Party’s address. It shall be deemed received three (3) working days after the date of dispatch in the case of e-mails and in the case of postage prepaid or courier on the date of receipt by the other Party.

12.3      Divisibility

If any part or any clause of these General Terms and Conditions is for whatever reason held to be illegal, invalid or unenforceable, such provisions shall be deleted and the remaining parts or clauses shall not be affected and shall remain valid and enforceable as if the invalid or unenforceable parts or clauses were not part of the General Terms and Conditions.

Any such part or clause shall be replaced by a provision that, insofar as legally possible, comes clo­sest to the intention of Parties in the affected part or clause. Parties shall in good faith negotiate and agree a mutually acceptable provision that shall replace the deleted provision.

12.4      Non-transfer

12.4.1      This Agreement and the rights and obligations ensuing from it for Buyer may not be transferred either directly or indirectly without the written consent of ROAM TECHNOLOGY.

12.4.2      ROAM TECHNOLOGY shall have the right to transfer this Agreement and the rights and obligations ensuing from it to a third Party. In that case a new agreement between Buyer and the third Party shall be concluded with terms and conditions (rights and obligations) identical to those in this Agreement for the remaining term.

ARTICLE 13: JURISDICTION AND APPLICABLE LAW

13.1      In the event of a dispute between the Buyer and ROAM TECHNOLOGY, irrespective of its nature and the place of delivery, the Courts of Hasselt shall have exclusive jurisdiction, even if it concerns accepted bills which are payable and/or domiciled outside this judicial district. Nevertheless, if ROAM TECHNOLOGY is the plaintiff, it shall be entitled – at its free choice – to summon before the court having jurisdiction over the Buyer’s place of business.

13.2      The present General Terms and Conditions as well as any agreement between parties, of whatever nature, are governed by and construed in accordance with the laws of Belgium, with exclusion of (1) all conflict of laws rules, (2) the UN Convention on the International Sale of Goods (1980), and (3) the NY Convention on the Limitation Period in the International Sale of Goods (1974).

13.3      Without prejudice to any other provision of these General Terms and Conditions, any claims by the Buyer arising out of or in connection with an agreement between parties or any purchase order will in any event become time-barred after expiration of one (1) year as from the date of delivery of the relevant goods.