These General Terms and Conditions of Sale apply to all Sales Agreements between VM Steel SA (the Seller) and the Buyer. Is considered as a Sales Agreement a pro forma invoice sent by the Seller to the Buyer and signed by the Buyer, a sales confirmation sent by the Seller, a signed purchase order sent by the Buyer to the Seller and signed by the Seller or a formal sales contract signed by both parties. They can only be modified in writing. These Conditions are subordinated to the specific conditions mentioned in the sales confirmation. All general conditions from the Buyer or other conditions mentioned in the Buyer’s documents are explicitly excluded. The validity of any agreement shall not be affected by the nullity of one or more of its terms and conditions.
Unless indicated otherwise, all price indications are net, excluding for example taxes, levies, import and/or export duties. Except express written derogation, the price is fixed during the period mentioned by our quotation. Any order placed later on and any late payment of an installment may be subject to a price revision, depending on the evolution of the costs of the seller. Prices will not be changed, unless in circumstances which could not be foreseen at the moment the agreement was made, and which have a material impact on the cost price, such as additional custom duties, taxes, bunker charges, freight or insurance cost– this list is non-exhaustive.
Offers by the Seller are not binding. Offers and orders by the Buyer, oral agreements, promises, assurances and guarantee statements made or given by our staff in connection with the conclusion of the contract shall not be binding without our written confirmation. E-mails may be used to provide written confirmation. Acceptance by the Buyer or the Seller’s offer is binding upon the Buyer and will be binding upon the Seller by the Seller’s submission to the Buyer or a written confirmation.
Buyer has to ascertain the availability of import licenses and/or exchange permits and the non-existence of Government restrictions, and has to complete all formalities required for the importation of goods prior to entering into the sales contract. Non-compliance does not entitle the Buyer to cancel the sales contract without being liable to pay any and all damages incurred by the Seller.
The payment of the price (installments and balance) takes place on the dates stipulated by the quotation. Except expressed otherwise in the quotation, all Seller’s invoices are immediately payable at sight on the Seller’s bank account. All taxes, duties, withholding etc. shall be borne by the buyer. In case of late payment, an amount in interest is charged on the invoiced amount as of its due date, automatically and without prior notification, equal to 10% per year, where each month that is started will be considered a full month that has elapsed, as well as a flat fee in damages equal to 10% of the invoiced amount, with a minimum of 100.00 EUR.
Seller has the right to claim a higher indemnity from the Buyer for all external or additional costs and expenses reasonably incurred in the enforcement of its rights under this clause, including, but not limited to, the payment of agency and legal fees and expenses whether incurred before or after legal proceedings. Late payment interest on this indemnity will accrue, as form the date the expenditure is incurred. Moreover, In the event of late payment of any installment or balance, we reserve the right to consider the contract as dissolved, by right and without prior notice, either in full or in relation to the part which has not yet been executed. In case of late payment of an invoice, all other debts of the customer that are not yet due will become payable immediately by operation of law and without prior notification.
If payment is agreed by Letter of Credit, only one letter of credit per sales contract is acceptable. In the event of late opening or late confirmation of the Letter of Credit, all obligations of the Seller will be prolonged with the same period as the delay in the opening or confirmation of the Letter of Credit, without detriment to the right of the Seller to annul the contract. All costs related to delay in the performance of the agreement due to Buyer shall be invoiced to Buyer.
Our delivery obligation is subject to our own correct and timely receipt of supplies, except if we are responsible for the incorrect or delayed delivery. Except express written derogation, we will not incur any penalty for late delivery. Delayed delivery cannot justify the unilateral termination of the contract by the buyer. Indications regarding delivery times are approximate and do not constitute an obligation to deliver at the indicated date. Delivery terms that have been expressly agreed upon shall commence on the date of our order confirmation and shall only apply on condition of timely clarification of all details of the order and timely fulfilment of all obligations by the Buyer, such as provision of all official certificates, provision of letters of credit and guarantees or payment of advance payments. The sole agreement on Incoterms (International Commercial Clause) does not constitute a fixed-date delivery.
5. FORCE MAJEURE
Force majeure or Acts of God are any and all circumstances caused by third parties or circumstances caused beyond the control of either Seller or Buyer and includes, but is not limited to, government restrictions, natural calamities, fire, acts of elements, war, piracy, military operations of any nature, blockades, strikes, fraudulent acts, which prevent seller and/or buyer from wholly or partially carrying out their contractual obligation. If disputed, a certificate issued or confirmed by the respective Chamber of Commerce, or equivalent government controlled organization, of Buyer’s or Seller’s country shall be sufficient proof of existence and duration of the existence of the circumstance.
In the event of force majeure, the affected party shall inform the other party without delay on the exact nature of the event, the cause thereof and the expected duration of the event.
The sales contract will be suspended for as long the force majeure exists. Seller shall inform Buyer on the number of days the agreement can or shall be suspended, depending on the terms and conditions of the Seller’s supplier. Upon expiration of that suspension period and if the force majeure continues beyond that period, Seller shall have the right to cancel the agreement without any damages payable to Buyer.
Only in cases of Force Majeure at destination caused by riots, revolutions, war strikes and only provided that the goods are not on the process of manufacturing or delivery and/or shipment, Buyer may call upon Force Majeure at destination to request Seller to annul, wholly or partially the contract. In any event, events of force majeure at destination are at the sole risk of the Buyer and the Seller has no obligation to annul, suspend or cancel the sales contract.
If, after the termination of the Force Majeure, on the date(s) of shipment, the cost of the sales contract to the Seller shall be directly or indirectly increased by any governmental or legal action of any kind, the price of the sales contract for the unshipped goods shall be increased accordingly.
Without detriment to the remedies available to the Seller, should it transpire after the sales contract has been concluded, even after delivery of the goods, but before payment has been settled in full, that Buyer is experiencing credit difficulties or that Buyer’s creditworthiness diminishes, Seller is entitled to demand any guarantee deemed necessary to ensure proper fulfillment of Buyer’s obligations
Orders with a long-term payment period will be supplied only within the confirmed limit of our credit insurance company. Any orders exceeding the credit limit at the agreed time of delivery, will only be carried out against security payment in the amount of the order value. The same procedure applies in case the limit is reduced or cancelled.
8. GRADES, SIZES AND WEIGHT
The grades, types and dimensions of the goods shall be determined according to standards agreed upon when concluding the contract; in the absence of these, according to DIN and EN standards in force upon conclusion of the contract and, in the absence of these, according to normal business practice. References to standards and similar regulations, to factory test certificates and similar certificates as well as information on grades, types, dimensions, weights and usability of the goods are no assurances or guarantees, nor do they constitute declarations of conformity or corresponding marks such as CE and GS. Weighing as carried out by us or our supplier establishes the weights. Proof of weight is provided by presenting the weighing slip. Wherever legally permissible, weights can be calculated according to DIN standards without weighing.
When the material is not specified at the time of entering into the sales contract, Seller is entitled to delay the supply of the material beyond the agreed delivery period or to cancel the agreement. Buyer remains responsible for all consequences and damages for the Seller resulting from such late specification.
Shipping marks, port markings, notify addresses and all other information pertaining to the manufacture, preparation and delivery of the contracted goods should all be given together with the complete material specification.
Buyer has to timely provide Seller with any specific instructions for drafting transport documentation. If the Buyer fails to issue these instructions timely, Seller will draft said documents to his best judgment. He will not be responsible for any fines, charges or levies resulting from errors or incorrect declarations or documentation.
Buyer accepts that Seller is entitled to rely on the specifications, declarations of quality and time of delivery confirmed by Seller’s suppliers. Seller does not accept any liability in that respect. Unless explicitly agreed, Seller has no liability whatsoever with respect to the fitness for purpose (including end-use) of the material supplied.
9. DISPATCH, TRANSFER OR RISK
Any costs and fees resulting from a delay in taking delivery as per the agreed ICC Incoterm (2020) are for Buyer’s account. In case of failure to timely take delivery the Seller has the right to take any protective measures at Buyer’s expense and risk.
For FOB and FAS sales, Buyer undertakes to designate within three calendar days from receipt of first notice of readiness of goods the vessel name, loading point and delivery time at loading vessel, or to nominate their agents within the same lapse of time in the agreed shipping port, duly authorized to take delivery of the goods on quay at port of shipment.
Failure to call forward goods for shipment within 3 calendar days, entitles Seller, at his exclusive option (i) to annul the agreement or part thereof or (ii) to consider Buyer’s failure as an authorization from the Buyer to the Seller to effect shipment at Buyer’s account and risk; in this hypothesis, Seller’s invoice is to include ocean freight at prevailing market rates and, as the case may be, the FPA insurance premium.
Goods sold Ex-Works and notified as ready for dispatch in accordance with the contract must be requested immediately, otherwise we are entitled, after a reminder, to invoice them and dispatch or store them at our discretion and at the Buyer’s expense and risk and to take all measures necessary to preserve the goods. In this case, the purchase price is due 30 days after the invoice date. If, through no fault of our own, transport on the intended route or to the intended location in the intended time becomes impossible or significantly more difficult, we shall be entitled to deliver by another route or to another location; the additional costs incurred shall be borne by the Buyer. The Buyer will be given the opportunity to express his preferences beforehand.
Buyer accepts, without liability for the Seller, that the goods may show the following or similar conditions (that are inherent to the transport of steel products) and therefore accepts the following or similar clauses or comments on Bills of Lading and/or other transport documents:
For packed material:
- Bands/wrappers/ties rusty/rust stained
- Goods loaded from open area
- Some bands broken/missing
- Some ends/bundles bent/buckled/deformed - Packing wet before shipment
For unpacked material:
- Goods atmospherically rusty/rust stained
- Bands/wrappers/ties/ rusty/rust stained
- Goods loaded from open area
- Some bands broken/missing
- Some ends/bundles bent/buckled/deformed - Wet before shipment
Without detriment to any remedy for the Seller, Buyer shall pay all storage costs in addition to the contract price, if Seller is to store the ordered goods due to any event caused by the Buyer, such as, without limitation, late opening or change of L/C, late payment or any delay in the performance of the Buyer of his obligations.
11. INSPECTION OF THE GOODS
Buyer has the right to inspect the goods or to have them inspected by approved inspecting agencies upon delivery as per the applicable ICC Incoterm 2020. The degree of inspection and the names of the inspectors or agencies are to be given by Buyer and to be accepted by Seller at the time of contract. If contract stipulated no inspection, goods are deemed to have been accepted by Buyer upon delivery as per the applicable ICC Incoterm 2020.
For CIF sales, insurance policies are endorsed to the benefit of consignees. In the event of damage of any kind, the latter and/or the Buyer are to take all necessary precautions at arrival of the goods according to the instructions as laid down in the policy or in its riders.
If the Buyer believes that there is any damage to the goods or any shortage beyond the agreed tolerances, it is the Buyer’s responsibility to contact the agent and/or transporter and/or any person who performed services on Buyer’s behalf in relation to the goods after taking of delivery of the goods as per the applicable ICC Incoterm 2020 and to follow the procedures and guidelines set by those parties. Seller has no authority or liability in that respect.
In case of invoicing at actual weight, the weight declared by the original supplying mill is final and is used for invoicing. The Buyer can re-weigh the goods again at the time of delivery according to the applicable ICC INCOTERM 2020. The checking of the weight must be done in the presence of a representative of a neutral control organization (such as for example, but not limited to, SGS, Bureau Veritas), and must be done by exact calibrated scale. In case another neutral inspection office is used, then this has to be agreed upon between Buyer and Seller. The costs related to a re-weight will be borne by the Buyer. If the quantity proves to be incorrect, the Seller will bear the costs of the additional weight measurement. The agreed weight tolerance is 1% on the whole quantity of the contract (in comparison with the Bill of Lading). In case the difference is more than 1% of the total quantity of the agreement, then the portion above 1% tolerance will be subject to reimbursement.
No claim with regard to shortage on piece count shall be allowed and Buyer is to arrange for recovery of shortage under insurance coverage, considering that weight declared by them is ascertained on leaving the works by full car- or truckloads. Seller does not guarantee actual partial weights or number of pieces, Seller’s liability is restricted to the total weight only.
Claims for non-visible defects in the goods or for non-conformity with the technical specifications under the contract, irrespective of whether the goods are packed or not, must be received in writing by Seller immediately after discovery by the Buyer of the alleged defect or non-conformity, but in any case within 30 calendar days from the day of arrival of the vessel at discharge port. All claims for defects in the goods or for non-conformity, shall be documented with an inspection report of the goods from an internationally recognized and independent surveyor (such as for example, but not limited to, SGS, Bureau Veritas). In case another independent surveyor is used, this has to be agreed upon between Buyer and Seller.
Claims filed after these dates are time-barred. This inspection report shall be made at the expense of the Buyer and will not be binding on the Seller. If the claim proves correct, the costs of the report will be borne by Seller. Failing the timely submission of this inspection report, the claim from the Buyer against the Seller shall be deemed to be invalid and unfounded. Seller has the right to identify and inspect goods subject to a claim.
Buyer shall not dispose of or make use of such goods without Seller’s agreement and shall keep them as stored and insured as a good pater familias until a final settlement has been reached.
All expenses incurred are for Buyer’s account, unless the claim proves to be justified. In that case, all expenses will be for Seller’s account. In addition to article 10 above, surface- and/or atmospheric rust for unpacked goods is recognized by Buyer and Seller as being unavoidable. Delivery of goods with such rust shall constitute good delivery.
Any claim in respect of quantity or quality of the goods, and/or any claim for losses or indemnities do not entitle Buyer from delaying payment or to make any deduction on the invoiced amounts by Seller.
13. TITLE AND RISK
Risk shall pass to the buyer on the date resulting of the applicable ICC INCOTERM. The title to the goods shall not pass until Seller has received full payment for all goods delivered under any contract between Buyer and Seller, even if these contracts relate to future or earlier deliveries. All goods remain property of Seller until payment has been received in full from Buyer under all outstanding contracts.
14. BUYER’S REMEDIES AND SELLER’S LIABILITY
The Seller’s liability in respect to duly established damages or non-compliant material furnished shall be limited to making replacement or reimbursement, at Seller’s option, and the Buyer’s sole and exclusive remedy against the seller shall to be obtain such replacement or reimbursement. The Seller shall under no circumstances be liable to anyone for damages of any kind or character, whether direct, special, consequential, incidental or otherwise.
Seller shall only be liable in case of proven fraud and proven intentional mistake.
In any case, except in the case of fraud by the Seller, the responsibility of the Seller is limited to the value of the goods. No other cost, nor tax, paid by the Buyer, can be recovered from the Seller.
The Seller will do everything within his power to send documents in due time, but cannot be held responsible for late arrival or theft of documents.
15. DRAWINGS AND DESCRIPTIONS
Weights, dimensions, capacities and other details included in catalogues, prospectuses, circulars, advertisements, images and price lists shall be deemed to have the status of further details. These data shall only be binding insofar as the agreement specifically refers thereto.
Any drawings and technical descriptions provided by Buyer to Seller either before or after agreement has been reached and on the basis whereof whole or partial manufacture is rendered possible, shall remain the exclusive property of Buyer. Seller may not use, copy or reproduce these drawings or technical descriptions, pass them on to third parties or acquaint third parties with them without the permission of Buyer. However, they are the property of Seller if this has been expressly agreed.
All shipments are governed by the ICC Incoterms 2020. The goods will always travel at the risk of the Buyer. Buyer must cover the adequate insurance to cover transport damages and risks as from delivery as per the applicable ICC Incoterm 2020. Seller takes no action whatsoever in case of CFR sales for insurance coverage.
Insurance under CIF offers is covered under FPA (free from particular average) provision and under the Antwerp Insurance conditions, also covering theft, pilferage, non-delivery, war and strike risks at ruling premium, but does not include rust and/or oxidation. Only at explicit Buyer’s request and if such cover can be arranged, Seller will arrange for additional coverage for additional premium.
Seller cannot be held responsible for a non-insurance or insufficient insurance in case of damage or problems after delivery, i.e. during transport to and unloading at destination. Seller will never pay or participate to any refund because of non- or improper insurance of the goods, or refusal, or non-settlement, by the insurance company.
17. ANTI-DUMPING PRECAUTIONS
Seller is never liable or responsible for the observing antidumping norms, rules and procedures at destination, Buyer’s national market and all markets of further sale or supply of the goods. At these markets Buyer cannot offer prices which are considered dumping by the local legislation and/or international agreements. Buyer is exclusively liable and undertakes to take all necessary actions. Buyer shall also bear all responsibility for any antidumping claims or similar.
18. RE-EXPORTATION PRECAUTIONS
Any change in the country of destination mentioned in the sales contract has to be agreed upon between both parties in writing. Should Buyer re-export the goods without the written consent of Seller, the former shall compensate the latter for the difference in price levels in the markets involved. Buyer shall also pay an additional penalty to Seller amounting to 50% of the value of the goods.
19. INFECTIOUS OR CONTAGIOUS DISEASE CLAUSE
In addition to clause 5 (Force Majeure) above, in case of the outbreak of an infectious or contagious disease which forces authorities to impose restrictions or bans on the movements of persons and / or goods and / or transport means, the following provisions shall apply to all sales agreements between VM Steel SA (the Seller) and the Buyer :
Delay or impossibility in supplying the goods : Seller shall not be responsible for all direct and indirect consequences of delay or impossibility in supplying the goods, according to the provisions of the Sales Agreement.
BIMCO Infectious or Contagious Disease Clause for Voyage Charter Parties 2015 : Sellers shall not be responsible if due to the outbreak of infectious or contagious disease in the contractual load port or discharge port, Owners / Operators / Managers of the carrying vessel avail themselves of the provisions of the BIMCO Infectious or Contagious Disease Clause for Voyage Charter Parties 2015 to amend their carriage obligations resulting from any bills of lading, waybills or other documents evidencing the contract of carriage of the goods object of the Sales Agreement.
Events of Hardship are unforeseen events, caused by other reasons than Seller’s serious fault, that result in a fundamental change to the economic or legal equilibrium of the sales contract resulting in an excessive burden on the Seller. Events of hardship include the breach of a contract by a third party, non-performance by the supplying steel mill, delay in delivery caused by accident of machinery or equipment, loss or damage before or after shipment, delays in inland transportation, shortage of rolling stock, congestion of shipping port, detention or delay of vessels for whatever cause.
In events of hardship, Sellers shall not be liable for late delivery, if a firm delivery date is agreed. In an event of Hardship to the Seller, Parties will negotiate alternative contract terms and conditions which reasonably allow for the consequences of the event. If no alternative contract terms can be agreed, Seller will be entitled to cancel the sales agreement, without being liable for damages or for any indemnity to Buyer
21. CANCELLATION BY THE BUYER
In case of cancellation of the order by the Buyer, or resolution of the sale because of the Buyer, the latter will be liable to the Seller of a lump sum compensation. This compensation is fixed at 30% of the price if the cancellation or the resolution occurs at the latest one month before the planned date of delivery, or of 50% if it intervenes later, with a minimum of 200 euro. After delivery no cancellation or return of special designed goods shall be accepted. Parties agree that this lump sum indemnity as a genuine estimate of the commercial losses and not a penalty. Seller has the right to claim higher damages, if the actual damages exceed the agreed lump sum.
22. TERMINATION–SUSPENSION OF THE CONTRACT
Seller is entitled to annul the sales contract in writing, without prior notice of default and without court intervention, with immediate effect and without owing any form of compensation to Buyer, in the event of:
- Bankruptcy or liquidation of Buyer;
- Negative credit advice from Seller’s credit insurance;
- Seller has objective indications that Buyer is experiencing liquidity problems;
- Transfer of trade fund by Buyer;
- Late payment of the invoiced amount, any pre-payment (if agreed) or of an installment under a deferred payment plan;
- Late opening or late confirmation of correct L/C;
- Breach of contract by Buyer, if not remedied within the reasonable term set by Seller in a prior notice of default;
- Late change or notification of specifications as per article 8.
- In case of cancellation by a supplier of VM Steel
Seller is entitled to suspend the performance of any contract if Buyer fails to perform its obligations under any contract between the Buyer and the Seller, even if that contract is different from the contract of which the Seller suspends its obligations.
23. HOLD HARMLESS IN CONNECTIONS WITH ILLEGAL ACTS
The Buyer confirms and guarantees that his agreement with the Seller is under no circumstances related to money laundering practices, terrorism financing or other illegal acts, neither under its own legislation nor under international treaties or recommendations of intergovernmental working groups such as the Financial Action Task Force (www.fatf-gafi.org), regardless of whether the country of the Buyer is a party to those treaties or working groups. The Buyer shall hold the Seller harmless against any breach of this guarantee and any breach gives the Seller the right to immediately terminate the agreement.
24. CHANGES TO THE CONTRACT
If Buyer requires changes to the contract, these shall only be admitted if explicitly accepted by Seller and can result in an increase of the price of the contract.
25. GRDP / PRIVACY
The seller respects and protects the privacy of natural persons with whom it has contacts and complies with the provisions of the General Data Protection Regulation 2 016/679 entered into force on May 25, 2018 (The " GRPD "). The seller collects and uses personal data (name, first name, address, email, phone number, fax number, bank account) only for its own accounting, tax and administrative needs and does not sell or otherwise transfer these data. Any person may (i) access personal data, (ii) ask to correct them or (iii) request to delete them, by contacting the data controller i.e. VM Steel S.A., 6 Avenue Pasteur at 1300 Wavre (Belgium), tel +32 10 233990, email email@example.com. Personal data are secured, except those that are not stored on the seller’s servers (because the applications that process them run on external servers), and for which reference is made to the conditions imposed by these third parties (applications such as Outlook, Google Drive, We Transfer, etc.). The data are accessible only to staff of the seller, with a personal access code, or to the maintenance company of the computer network and the one that maintains the licensed software used by the seller’s application. Personal data will not be kept for a period more than is necessary to achieve the purposes of the processing unless the data retention is legally imposed.
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26. CHOICE OF LAW
The validity, construction and performance of this contract shall be governed by the laws of Belgium, including the provisions of the 1980 Vienna Convention on the International Sale of Goods, and any disputes, differences or questions that may arise under or in relation to this contract (including any disputes, differences or questions relating to its validity and construction ), which are not settled by negotiation between the parties within 10 days after each party has requested the other party to enter into such negotiations, shall be referred to the exclusive jurisdiction of the Brussels Courts. However, Seller has the right to start proceedings before the courts of the State of the domicile of the Buyer or before the courts of the state where the goods are located at the time of the start of the proceedings.
27. COMMON AND FINAL PROVISIONS
These General Terms and Conditions of Sales are valid from April 15, 2022. The parties are always subject to the version of the GTCS as published on the Seller’s website (www.vmsteel.com) as of the date of concluding the contract.