GENERAL TERMS AND CONDITIONS OF FCD PARTNERS B.V.
a private limited company, having its registered office at P.O. BOX 50004, 9400 LA, Assen, the Netherlands, registered with the Chamber of Commerce and Industry Friesland under number 54138558.
1. Applicability
1.1 These General Terms and Conditions apply to all agreements between FCD Partners B.V. (to be referred to below as the ‘Seller’) and all third parties (to be referred to below as the ‘Customer’), and to all offers, quotations, supplies of products and/or provision of services by the Seller to the Customer, and to all orders of the Customer, regardless of whether an agreement has been concluded between the Seller and the Customer. The term ‘product’ as used in these General Terms and Conditions also includes a service.
1.1 Any general or other Terms and Conditions applied by the Customer are excluded. The Customer may invoke provisions that differ from or supplement these General Terms and Conditions only insofar as they have been accepted by the Seller in writing. Such additional or different provisions will not affect the applicability of the other provisions of these General Terms and Conditions, and will apply only to the agreement for which that has been expressly agreed in writing.
1.2 By accepting these General Terms and Conditions, the Customer also accepts the applicability of these General Terms and Conditions to all future agreements between the Seller and the Customer. These General Terms and Conditions also apply to any continuing performance agreements that have arisen between the Seller and the Customer.
2. Quotations and the conclusion of agreements
2.1 All quotations and offers of the Seller, and all orders of the Customer, both written and oral, will be without commitment for the Seller and will not bind the Seller.
2.2 Agreements between the Customer and the Seller will be concluded as soon as the Seller has accepted in writing an order from the Customer or as soon as the Seller has commenced the performance of an order of the Customer.
2.3 Without prejudice to the above provisions, the Seller will have the right to revoke a quotation within seven days after an order has been accepted.
2.4 Undertakings given by and agreements concluded with subordinates or representatives of the Seller will not bind the Seller unless duly confirmed in writing by the Seller.
3. Prices
3.1 Unless otherwise agreed, the Seller’s prices will be in accordance with the price lists most recently fixed by the Seller and will be exclusive of the cost of packaging, VAT, import duties and any other taxes due. The prices ARE Ex Work s (“EXW”) in accordance with the relevant provisions in de version of the Incoterms published by the International Chamber of Commerce in 2000.
3.2 Price adjustments will be permitted and will be made known to the Customer by the Seller. The adjusted price lists will apply to agreements concluded after the date of the price adjustment.
4. Payment
4.1 Unless otherwise agreed in writing, payment must be made by means of transfer or remittance to a bank or giro account designated by the Seller, within 21 days after the invoice date. The settlement date specified on the Seller’s bank or giro statement will be regarded as the date of payment.
4.2 The Seller will at all times have the right to demand payment in advance, security or immediate cash payment upon delivery, in which case the Customer will be required to comply.
4.3 The Customer will not have the right to set off any debt to the Seller, whether or not disputed, against any debt of the Seller to the Customer, whether or not disputed, or to suspend the payment of a debt to the Seller.
4.4 All payments by the Customer will first be applied against any outstanding interest and costs and, after they have been paid in full, against the oldest outstanding invoice, regardless of any designation made upon payment.
4.5 If the Customer has failed to fulfil its payment obligation, it will be deemed to be in default by operation of law and the amount due to the Seller will fall due immediately, without any demand for payment or notice of default being required, increased by 2% interest per month, charged as from the invoice date, part of a month being counted as a full month.
4.6 All out-of-court costs incurred by the Seller in the collection of amounts payable by the Customer or in the enforcement of the performance of any other obligation of the Customer will be for the Customer’s account. The out-of-court costs are set at least 15% of the amount due, subject to a minimum of €250,-. In any case other than a payment obligation the minimum out-of-court cost payable shall be €750,-. The minimum amounts to be paid under this paragraph are without prejudice to the Seller’s right to claim the actual costs if they prove to be higher.
4.7 In addition to the cost due under paragraph 4.6 of these Terms and Conditions, the Customer will be required to compensate all the court costs, whether or not relating to a payment claim, including the costs of legal assistance from attorneys, advocates, solicitors, barristers, legal representatives or bailiffs, even in the event that such costs have not been awarded by the court, incurred by the Seller to enforce compliance by the Customer with its obligations towards the Seller, unless the Seller has been entirely unsuccessful in court and has been ordered to pay the costs of the proceedings.
4.8 Any and all claims of the Seller against the Customer, on any ground whatsoever, will fall due immediately if third parties claim to have rights in respect of the Customer’s property, if its products are attached, if the Customer applies for a suspension of payments, if a petition in the Customer’s bankruptcy is filed, if the Customer makes a repayment arrangement with one of its
creditors or otherwise gives the impression that it is or may become insolvent, if the Customer winds up or liquidates its business, whether or not voluntarily, if the Customer’s business is converted to or continued in another legal form, if its registered office or place of business is relocated to another address, city or country, if the direct or indirect control over the Customer is transferred to a third party, if the Customer dies or is placed under compulsory guardianship, or if the Customer transfers the rights under the agreement in question to a third party.
4.9 Payment will be in Euro, unless another currency is agreed by letter between Seller and Customer.
5. Transfer and passing of risk
5.1 Unless the parties have otherwise expressly agreed in writing, all deliveries will be Ex Works (‘EXW’), in accordance with the relevant provisions of the version of the Incoterms published by the International Chamber of Commerce in 2000.
5.2 Early delivery or partial deliveries will be permitted at all times. The Customer will be obligated to accept such early delivery or partial deliveries by the Seller. Partial deliveries may be invoiced as separate deliveries.
5.3 Delivery periods will be approximate and will in no event be of the essence. If a delivery period is exceeded because the Customer has not given specific delivery instructions or has not provided other information or performed other actions required for the delivery, or because a circumstance beyond the Seller’s control has occurred that prevents delivery within the delivery period, the delivery period will be extended by the period during which performance of the agreement has consequently been delayed or impeded.
5.4 If a delivery period is exceeded, the Customer will in no event be entitled to compensation of any direct or indirect damage, to dissolution of the agreement or to suspension of any of its own obligations under the agreement or under any other agreement.
5.5 The products will be for the Customer’s account and risk as from the moment of delivery.
6. Complaints
6.1 Complaints concerning defects in products delivered by the Seller must be filed with the Seller in writing within eight days of delivery, on pain of forfeiture of all possible claims against the Seller. With a view to the evidence referred to in Article 6.2, the Customer will be required to inspect the products delivered immediately after delivery, and to report immediately any defects found to the Seller and, if applicable, to record them or have them recorded on transport documents.
6.2 If a complaint concerning a product delivered by the Seller is justified in the Seller’s opinion, and, also in the Seller’s opinion, the Customer has been able to provide sufficient evidence that the defect referred to in Article 6.1 already existed at the moment of delivery, the Seller will, each time at its option, either replace the defective product free of charge or grant the Customer a discount in respect of the product delivered.
6.3 Products in respect of which a complaint has been filed may not be returned to the Seller unless the Seller has given its express prior written consent.
6.4 A possible complaint will in no event entitle the Customer to suspend its obligations towards the Seller, to set aside the agreement or to recover its loss from the Seller.
7. Retention of title
7.1 Without prejudice to the provisions of Article 5.6, the Seller will retain title to all the products delivered to the Customer until the purchase price of all those products has been paid in full, including interest and costs. The retention of title will also apply to any claims that the Seller may acquire against the Customer on the grounds of failure of the Customer to fulfil one or more of its obligations towards the Seller under the agreement or under other agreements concluded between the parties.
7.2 During the period in which the products are subject to retention of title, the Customer may not repackage the products and must keep them separate from other goods in the Customer’s possession.
7.3 As long as the products are subject to retention of title, the Customer may not sell or create any restricted right in respect of those products, otherwise than in the normal conduct of its business. The Customer’s right to sell the products in the conduct of its business will automatically lapse if an attachment is levied against the Customer or if a suspension of payments has been applied for, a petition has been filed in the Customer’s bankruptcy, or the Customer enters into a repayment arrangement with one of its creditors.
7.4 The Customer will have a duty of care in respect of the products to which retention of title applies and must insure such products and keep them insured against all the risks that are customary in the sector, in any event including contents and trading stock insurance that covers the risks of, among others, fire, theft, explosion and water damage.
7.5 If the Customer fails to fulfil its obligations under any agreement concluded with the Seller, if the Seller has good reason to fear that the Customer will fail to fulfil its obligations under an agreement, or if third parties claim to have rights in respect of the products, the Seller will have the right to take back the products delivered to the Customer, for the Customer’s account and risk. This right will exist in particular – but not exclusively – if the Customer has applied for a suspension of payments, if a petition in the Customer’s bankruptcy has been filed, or if the Customer makes a repayment arrangement with one or more of its creditors. In the event that the Seller wishes to exercise its ownership rights specified in this Article, the Customer hereby unconditionally and irrevocably authorises the Seller or a third party or third parties to be designated by the Seller to gain access to all the premises where the products that are the Seller’s property are located and to take back those products.
7.6 If a third party claims to have rights in respect of the products delivered by the Seller subject to retention of title, wishes to create rights in respect of such products or wishes to attach such products, the Customer must inform the Seller accordingly within 24 hours after this comes to its attention.
8.Liability
8.1 The Seller will not be liable towards the Customer for any damage, whether direct or indirect, resulting from failure to perform an agreement with the Customer, from an unlawful act towards the Customer or for any other damage, whether direct or indirect, that has otherwise occurred, unless that damage is due to intent or gross negligence of the Seller’s Board of Directors or executive subordinates belonging to the Seller’s management. The Seller will also not be liable for any damage, whether direct or indirect, that can be attributed to an act or omission of the Customer or a third party engaged by the Customer.
8.2T he Seller will in no event be liable for any loss of profits, consequential loss and/or indirect loss of the Customer. Without prejudice to the above provisions, the Seller’s liability will in all cases be limited to the original purchase price of the products or to the amount covered by the Seller’s liability insurance and reimbursed in the case in question.
8.3 The Customer will be obligated at the Seller’s first request immediately to recall any products marketed by the Customer that prove to be defective.
9.Customer’s obligations and indemnity
9.1 All the products marketed by the Seller may be sold only undamaged, unblended and in their original packaging.
9.2 If the products are intended for customers outside the Netherlands, the Customer must ensure that the products will be suitable for sale outside the Netherlands, in particular – but not exclusively – with regard to the regulations that apply in that country to commercial, product liability, safety and food safety regulations, as well as the consumer goods legislation that applies in the country in question and any other regulations concerning the composition of the products.
9.3 The Customer shall not pursue an active sales policy towards delivery of the Products to third parties in other countries. If the Customer resides outside the European Economic Area (“EEA”) it shall not distribute or sell the Products to any party in the EEA or to any party that intends to distribute or sell the goods to any party in the EEA. Seller expressly withholds its consent to the distribution and sale in the EEA of any Products that were first put on the market outside the EEA.
9.4 The Seller may state recommended retail prices for sale (or resale) by the Customer to third parties. The Customer will not be obligated to apply those recommended retail prices, but must apply such prices as to prevent damage to the image created by the Seller by means of marketing and promotion or to the Seller’s name and reputation.
9.5 The Customer shall indemnify and hold the Seller harmless against any claims for damages, whether direct or indirect, whether compensatory or punitive, from third parties insofar as they relate to damage resulting from failure of the Customer to comply with these General Terms of Conditions or any other regulations of the Seller. The Customer shall furthermore be required to reimburse any damage incurred by the Seller in such a case, including damage to the Seller’s name and reputation.
10. Dissolution and suspension
10.1 If the Customer fails to fulfil one or more of its obligations towards the Seller or if the Seller fears that the Customer will fail to fulfil its obligations, if a petition is filed in the Customer’s bankruptcy, if the Customer applies for a suspension of payments, if the Customer liquidates or winds up its business (whether or not voluntarily), if the Customer’s business otherwise comes to a standstill, if part of its assets is attached, if the Customer makes a repayment arrangement with one or more of its creditors and/or if the Customer otherwise gives the impression that it is insolvent, the Seller will have the right (I) to suspend its obligations towards the Customer, on any ground whatsoever, until the Customer has fulfilled all its obligations towards the Seller, and/or (II) to dissolve the agreement in full or in part, in both cases without any judicial intervention being required, by means of a written statement and without consequently being liable towards the Customer for any damages, costs or interest, notwithstanding the Seller’s right to claim full damages.
10.2 Except insofar as otherwise provided in these General Terms of Conditions, the Customer’s right to dissolve agreements between the Seller and the Customer under Article 6:265 of the Dutch Civil Code is excluded.
11. Force majeure
11.1 For the purposes of these General Terms of Conditions, ‘force majeure’ means any circumstance beyond the Seller’s control, even if that circumstance was foreseeable at the date of conclusion of the agreement, that permanently or temporarily prevents performance of the agreement with the Customer in full or in part. Force majeur shall anyway be constituted by, but not be limited to, transport difficulties, fire, accidents, import and export restrictions, disturbances, riots and serious disruption of the Seller’s business, such as terrorist attacks, strikes, lockouts, embargos, excessive absence owing to illness, and the impossibility to perform the agreement as a result of shortcoming on the part of the Seller’s suppliers or persons or products engaged by the Seller in the performance of the agreement.
11.2 In the event of force majeure, the Seller will have the right, at its option, either to suspend its obligations under the agreement or to dissolve the agreement with the Customer in full or in part, without the Seller being liable for any damage, whether direct of indirect, whether compensatory or punitive towards the Customer.
12. Intellectual property rights
12.1 All industrial and intellectual property rights in respect of the products produced, sold and delivered by the Seller will vest and continue to vest in the Seller. This includes patents, trademarks, copyrights, design rights, know-how, the right to use a trade name, database rights and exclusive licensing rights. The delivery of a product originating with the Seller may not be regarded as an express or implied licence to use, publish, multiply, turn to account or allow third party to use the intellectual and industrial property rights, unless the Seller has given its prior written consent.
12.2 The Customer must immediately notify the Seller in writing if it establishes that a third party is infringing any industrial or intellectual property right of the Seller or if a third party makes any claim against the Customer related to the Seller’s intellectual and industrial property rights. If the Seller so desires, the Customer must provide any cooperation that may reasonably be required and may result in the earliest possible termination of the infringing acts or the dispute.
12.3 Any time that Customer or any third party, whether or not on request of the Seller, create or develop any new work, such as (but not limited to) trade marks, design or any other distinctive symbol, for use in Seller’s business, the Customer or the then relevant third party undertakes that any intellectual property rights that may be vested in such work shall, at the request of the Seller, be transferred to the Seller against a compensation of €1,- (one Euro).
13. Expiry date
13.1 Unless the parties otherwise expressly agree in writing and except insofar as otherwise provided in these General Terms and Conditions, any claim against the Seller will in any event expire one year after the date of delivery or one year after the date at which delivery should have been made.
14. Conversion and interpretation
14.1 If one of the provisions of these General Terms and Conditions is null and void, is nullified or has no binding effect, that will not affect the validity of the other provisions. If one or more provisions is/are null and void, is/are nullified or has/have no binding effect, the Seller and the Customer will negotiate and agree in good faith on alternative provisions that are valid and that most closely approximate the content and scope of the provisions that have proven to be null and void, that have been nullified or that have no binding force.
14.2 These General Terms and Conditions have been drawn up in English and may be translated into various other languages. In the event of differences in text and/or interpretation between the various versions, the English version of these General Terms and Conditions will be decisive and binding in all cases.
14.3 The headings and chapters of these General Terms of Conditions serve only for the reader’s convenience and do not affect the content and meaning of the provisions of these General Terms and Conditions.
15. Miscellaneous
15.1 Any reference in these Terms and Conditions to a year or part of a year, such as days, weeks and months, will be calculated on the basis of the Gregorian Calendar.
15.2 Agents and distributors shall be bound and by the Agreements they have with the Seller and by these Terms and Conditions. In case of conflict the terms of the relevant Agreement shall prevail.
16. Competent court and applicable law
16.1 All obligations between the Seller and the Customer, as well as these General Terms and Conditions, are exclusively governed by the laws of the Netherlands. The applicability of the United Nation’s Convention on Contracts for the International Sale of Goods is expressly excluded.
16.2 Any and all disputes between the parties will be submitted exclusively to the competent court of Amsterdam in the Netherlands.