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General conditions

DIAGAM SA


I. Preamble

1. Whenever in these General Conditions, the term “in writing” is used, it means a document signed by both parties, by registered mail, by fax, by email or by any other means that the parties agreed.

2. The provisions of these general conditions are an integral part of the tenders or contracts concluded. The customer is supposed to have read and accepted all the terms, unless expressly stipulated otherwise in writing.

3. By its order, the customer confirms its total acceptance without reservation of these terms and conditions, without being able to invoke its own conditions of purchase or payment, even if they are contained in its order confirmation or any other document, with the exception, however, of mandatory provisions concerning procurement contracts.

4. Tenders are prepared subject to omissions or calculation errors and are valid for 30 calendar days, after which they become invalid immediately. The offers remain confidential so long as they have not been accepted in time by the customer.

5. Any order will only come into force and commit DIAGAM after written acceptance by the latter. The confirmation of an order may, however, result from the shipment of products ordered.

6. In case of a unilateral cancellation of the contract by the customer, the customer will be liable to DIAGAM for compensation equal to 30% of the total amount of the order, without prejudice to DIAGAM to claim compensation for all the damage suffered.

7. DIAGAM reserves the right to modify the terms of the contract at any time. If proposed changes in contractual conditions are notified, the customer has the right to terminate the contract in writing without compensation. The customer is notified in writing and on time at least fifteen (15) days in advance of such changes, at the same time as its right to cancel the contract without compensation, no later than the last day of the month following the entry into force of the changes if it does not accept the new conditions.

II. Price and payment

8. Catalogues, printed materials and rates cannot be considered as an offer.

9. Prices are understood to be before tax. The costs of special packaging are subject to an additional flat rate invoicing.

10. The invoices are adapted to each package and established in accordance with the legislation in force and are payable, unless there are special conditions or the parties agree otherwise, within 30 days at the end of month following their issue date. An invoice will be sent to the customer on the date the goods are made available, in whole or in part.

11. Unless otherwise agreed between the parties, invoices are payable exclusively to DIAGAM’s bank account listed on invoices. All payments are made at the registered office of DIAGAM, without discount.

12. Any invoice is definitively accepted if it has not been the subject of a complaint by registered letter to be sent to us within 8 (eight) days of its date; without these conditions, it shall be considered null and void. The dispatch of the invoice is considered formal notice in proper and due form. In case of non-payment when due, the remaining balance due as well as 10% interest per year will be automatically and immediately due in full, without prior formal notice. Failing payment of invoices within 30 days from their due date, DIAGAM will be entitled to claim, in addition to interest, an additional amount equal to 10% of the outstanding balance as lump sum compensation, expressly agreed between the parties.

13. In case of delayed payment, DIAGAM shall be entitled, after informing the customer in writing, to suspend the performance of the contract until payment is received.

14. If within 30 days, the customer has not paid the amount due, DIAGAM is entitled, by written notice sent to the customer, to terminate the contract and request compensation for losses suffered. DIAGAM may not only terminate the contract or contracts that are the subject of the late payment, but also all contracts whose prices remain unpaid, whether the corresponding products have been or are being delivered and whether their payment is due or not. In all cases, the sums due for other deliveries or for any other reason shall become immediately payable. 15. Prices are established as consideration for normal work, suffering no interruption, all elements that the customer must provide or prepare being in order when needed. Any additional difficulty leading to additional work, caused by any circumstance outside DIAGAM, as well as any changes requested by the customer, lead automatically to additional invoicing based on the rate in effect at that time.

16. Also, DIAGAM reserves the right to change product prices at any time. If the price change is an increase other than indexing, the customer has the right to terminate the contract in writing on or before the last day of the month following the entry into force of the changes if it does not accept the new conditions.
17. Under no circumstances may the payments be suspended or be subject to any compensation whatsoever without the prior written agreement of DIAGAM.

III. Time periods

18. The delivery time communicated to the customer upon receipt of the order is given for informational purposes only and does not constitute a firm commitment. The customer cannot in any case assert a right to compensation or require the interruption or termination of an agreement in the event that a deadline cannot be respected. 19. In the event that the parties have agreed to a mandatory deadline, the customer can, if the delivery or completion is delayed, claim compensation not exceeding 10% of the total price of the order. However, this compensation may not be made in the following non-limiting cases: In case of force majeure; If the order to start our services is given late in relation to the contract or the order confirmation; If the payment terms are not met; If changes are decided by the customer during work; If the customer does not provide the information requested within the specified time.

IV. Delivery of goods

20. Shipments are made EX-WORKS (Incoterms 2010) (including special packaging (carblocage, etc.) for any orders, without any minimum purchase.

21. Goods are always transported at the risk and expense of the customer, regardless of who performed the transport and by whom it was requested. DIAGAM declines any liability for deterioration and damage that occurred during transport or as a result of it, especially during storage of the goods after transport. In case of any damage, it is the responsibility of the recipient of the goods to notify the carrier in writing about loss and damage found on arrival and generally to exercise any recourse against the carrier.

22. If the customer fails or refuses to take delivery of goods ordered, DIAGAM reserves the right to require performance of the contract or to consider, after prior notice, the contract to be terminated automatically. In the latter case, the customer will be liable, automatically and within eight days after the notification of this termination, to pay a minimum lump sum equal to 30% of the sale price, without prejudice to DIAGAM to claim compensation for its entire loss.

23. DIAGAM retains ownership of the goods provided until full payment of the purchase price, costs and taxes. Up to this date, the customer is expressly forbidden to lend the equipment, lease it, give it as collateral, generally dispose of or relinquish it any form whatsoever and in any capacity whatsoever. Failing payment by the customer of one fraction of the price on the agreed dates, DIAGAM may require, by registered letter with acknowledgment of receipt, the return of the goods delivered at the expense and risk of the customer and retain them until full payment, without having to initiate proceedings. The risks, however, are transferred upon the conclusion of the sale. In case of incorporation of new material in the products delivered, DIAGAM remains co-owner of the products thus changed to the portion of the price remaining unpaid.

24. The customer also has a period of 15 days to inform DIAGAM in writing of any compliance issues for products delivered compared to the order. Any use or resale of goods delivered is considered a full acceptance of the compliance of the goods.
25. Under penalty of revocation, all hidden defects must be reported by the customer to DIAGAM by registered letter with a detailed description within 30 days following their discovery.

26. The warranty of hidden defects can only be implemented if the following conditions are met:

  • the defect renders, to a significant extent, the product unfit for the use for which it is usually intended or a special use expressly mentioned in the special conditions of sale;
  • The product is used under normal conditions; the warranty will not apply in particular if the maintenance and operating instructions provided, which the customer expressly acknowledges, have not been followed, and in case of resale or loan of the products or in case of modification, disassembly or repair by a person who is not professionally qualified.

27. The warranty is limited, at the discretion of DIAGAM, to the free repair or replacement of defective goods. In no case will these be reimbursed. The customer must return at his own expense and risk the defective product to DIAGAM so that it can be repaired or replaced. DIAGAM will bear the shipping costs and the costs of return to the customer if the product to which the warranty applies proves to be actually defective.

V. Liability

28. DIAGAM will in no event be held liable for any loss suffered by third parties or by the customer in the event that the latter has not complied or adopted an attitude contrary to the information and recommendations on the use and marketing of the products.

The customer must also guarantee DIAGAM against all claims of third parties who have suffered a loss directly or indirectly consequential to non-compliance by the customer with the information and recommendations referred to in this article.

29. More specifically, DIAGAM especially draws attention of the customer to the following:

  • The products are intended for use in vitro. The customer is solely responsible for their use in the medical or industrial field;
  • The customer will pass on to its own partners and customers, the conditions and recommendations for product use;
  • The customer will be solely responsible for marketing the products in the territory of delivery and the legal conditions in which these products may be marketed in that territory;
  • The customer will be the sole importer of the products in the territory of delivery and will be solely responsible for compliance with the legislation applicable in that territory. It shall perform all of formalities to ensure that the products may be marketed in its territory;
  • DIAGAM may not at any time be held liable if the products are not allowed by law or by any authority to be marketed in the customer’s territory.

VI. Intellectual property

30. The customer can use the trademarks, trade names or other distinctive signs belonging to DIAGAM without the prior written consent of the latter. The customer agrees not to file or have filed patents, trademarks, trade names or distinctive signs belonging to DIAGAM or made available by it or that could create unfair competition or any harm to it.
VII. Force majeure
31. Each party shall be entitled to suspend performance of its obligations to the extent that such performance is impeded or made unreasonably onerous due to the following circumstances: work disputes and any other circumstance beyond the control of either party, such as fire, war, military mobilization, insurrection, requisition, seizure, embargo, energy restrictions and defects or delays in deliveries from subcontractors caused by such circumstances.

VIII. Disputes and applicable law

32. Unless otherwise expressly agreed in writing between the parties, disputes concerning the validity, interpretation or execution of these conditions, for an amount exceeding €100,000 that could not be resolved amicably, will be settled as follows: The parties will attempt to resolve the dispute by mediation under the bMediation mediation regulation (www.bmediation.eu). The mediation will begin no later than 15 days after the request for mediation notified by one party to the other party and the mediation period may not exceed 30 calendar days, unless the parties expressly agree otherwise.

33. In case of failure of the mediation, or for any dispute for which the stake is less than €100,000, the parties shall refer the dispute to the French-speaking courts of the judicial district of BRUSSELS.

34. Disputes arising from the contract or in relation thereto shall be subject to Belgian law.