Section 1 General
1. These General Conditions of Sale and Delivery ("General Conditions") apply to all offers, quotations and agreements in which Foldtable ("Supplier") undertakes to deliver goods and/or services. Unless parties have explicitly agreed in writing to depart from the General Conditions,
they shall apply to all consequent contracts.
2. The customer referred to in the General Conditions is the other party in relation to Supplier acting as a customer and/or client in the pursuit of an occupation or business.
3. Supplier shall not be bound by general conditions of the customer unless it has explicitly accepted such conditions in writing prior to concluding an agreement.
4. Insofar as the General Conditions also exist in a language other than Dutch, the Dutch text shall prevail in all and any instances of inconsistencies.
5. If any provisions of the General Conditions are null and void or are nullified, the surviving provisions shall remain applicable in full. In such circumstances, Supplier and customer shall consult with each other to agree new provisions to replace the null and void or nullified provisions, with a view to replicating as closely as permissible the objective and purport of the original provisions.
Section 2 Offers
1. All offers made by Supplier shall be without obligation. At any time within three days of receiving timely acceptance of an offer, Supplier shall have the right to withdraw the offer by sending customer written notice.
2. An agreement shall be deemed established once Supplier has confirmed a received order in writing.
3. Oral undertakings and agreements made by employees and/or representatives of Supplier and/or its other agents shall not be binding until confirmed by Supplier in writing.
4. Customer shall be responsible for determining whether goods deliverable by Supplier are suitable for the purpose for which customer intends to use them. Advice provided by Supplier regarding supply of goods shall not give Supplier any liability whatsoever.
5. Sold and/or delivered goods shall be deemed to fulfil the agreement if they exhibit any irregularities, variances or differences in design or colour that are inherent in normal manufacture. Drawings, brochures and similar items shall be provided merely by way of indication without implying any obligation for Supplier to deliver in accordance with the stated sizes, weights and colour shades.
6. Offers shall not apply to any repeat orders.
Section 3 Delivery
1. Delivery shall take place ex works Den Hout (EXW, Incoterms 2000) and the goods deliverable by Supplier shall be transported at the expense and risk of customer, unless explicitly agreed otherwise in writing.
2. Customer shall unload the goods at the place of delivery, regardless of the agreed methods of delivery and transport.
3. All agreed delivery times shall be approximate, shall never be construed as deadlines and shall apply barring unforeseen circumstances. In the event of overdue delivery, Customer shall serve Supplier with written notice of default, with due observance of a reasonable period of time. Overdue delivery shall not give customer the right to dissolve the agreement in full or in part and/or to receive compensation, unless and to the extent that Supplier caused the overdue delivery by gross negligence or intent.
4. Supplier shall have the right to make partial deliveries and to invoice separately any goods thus delivered.
5. Supplier shall decide the method of transport if parties have agreed that Supplier shall be responsible for transporting the goods. If customer requires a different method of transport or different packing of the goods, customer shall be liable for any damage caused to the goods during and/or through transport.
6. Customer shall obtain at its risk and expense all required import licences and other official permits and/or documents and, where applicable, shall fulfil all customs formalities necessary to import the goods at their destination.
7. Customer shall obtain permits, exemptions and/or licences required for transport of the goods within the territory of transport. Customer shall pay the costs incurred for such permits, exemptions and/or licences.
8. Regardless of the agreed method of delivery and transport, customer shall immediately take possession of the goods if the goods are ready and Supplier has informed customer that such is the case. Non-fulfilment of this obligation shall give Supplier the right to store the goods at the expense and risk of customer, without prejudice to the obligation of customer to pay the invoiced amount due for the goods.
9. Failure by customer to fulfil (or fulfil on time) any payment obligation shall suspend the delivery obligation of Supplier.
Section 4 Price and payment
1. Unless otherwise stated, prices quoted by Supplier shall be in euro exclusive of VAT and packing. Prices quoted by Supplier shall be based on delivery as agreed in accordance with Incoterms 2000.
2. Supplier shall have the right to pass on to customer increases in one or more cost price factors that occur after the date of signature of the agreement because of circumstances including but not limited to changed raw material prices, exchange rate, import duties and similar, provided that Supplier informed customer in good time before charging on the price change.
3. Unless otherwise agreed in writing, payment shall be due in cash on delivery. If no payment term has been agreed, Supplier shall apply a term of ten days from the date of the invoice.
4. Customer shall be deemed in default at law by failing to pay as agreed on delivery or within the agreed term and Supplier shall have the right, without further notice, to charge customer interest from the due date at a rate of one per cent per month over the contract price, unless the statutory rate of interest is higher in cases where that rate is payable.
5. Customer shall pay all judicial and extrajudicial collection costs incurred by Supplier to obtain fulfilment of the obligations of customer.
6. Customer shall not have the right to set off any debts owed by Supplier unless Supplier has given customer written confirmation of its consent.
7. Supplier shall receive payment three months after order date in the case of call-off orders for which no delivery dates have been specified.
8. Debts customer owes Supplier shall be immediately payable on demand if customer is the subject of liquidation, bankruptcy or suspension of payments or if a substantial proportion of its assets are seized.
9. Before making or continuing delivery, Supplier shall have the right to require from customer sufficient security for fulfilment of its payment obligations. Refusal by the buyer to provide the required security shall give seller the right to consider the agreement dissolved, without prejudice to its entitlement to compensation for any damage incurred.
Section 5 Instructions
At the request of customer, Supplier shall provide instructions for use of the goods at the time of their delivery. Supplier shall not be responsible for correct or incorrect following of such instructions. Customer shall subsequently issue these instructions to its employees or to other third parties who will use the delivered goods.
Section 6 Complaints
1. Upon arrival of the goods, customer shall immediately check the quantities and compare them with those stated on the consignment note or delivery note. Observed discrepancies shall be noted on the receipt.
2. Complaints about directly observable irregularities regarding the delivered goods or the received invoice shall be submitted in writing within eight days of the date of delivery or receipt of the invoice.
3. Shortcomings not observed at the time of delivery of the goods shall be made known to Supplier in writing within eight calendar days of becoming apparent.
4. Customer shall have the right to return goods only if Supplier has given written consent for their return. Customer shall pay the costs of returning goods.
5. Complaints shall not suspend the obligations of the customer to pay for or take possession of the goods.
Section 7 Warranty
1. Supplier guarantees that goods shall be free of material and manufacturing faults for six months after delivery. Supplier gives no further guarantees apart from those specifically described in the General Conditions.
2. Supplier shall remedy defects covered by the warranty free of charge either by repair or replacement of the defective goods, such at its discretion. Customer shall perform any repairs that need to be performed in its territory. Supplier shall not reimburse labour costs incurred by customer for exchanging replacement parts.
3. The warranty shall not apply if:
a. faults in goods are the result of normal wear and tear and/or improper use;
b. goods have been exposed to abnormal conditions;
c. faults are the result of use contrary to the supplied manual and/or maintenance instructions;
d. customers have made modifications to delivered goods without the written permission of Supplier.
4. No warranties shall be provided for inspection, advice and similar services rendered by Supplier.
Section 8 Liability
1. The liability of Supplier shall not exceed its warranty obligations under Section 7.
2. Without prejudice to provisions made elsewhere in the General Conditions concerning the liability of Supplier, Supplier shall not be liable for any kind of business damage and/or other forms of indirect or consequential damage, or for damage in relation to customer or third parties, unless and to the extent that Supplier caused such damage by gross negligence or intent.
3. Under no circumstances whatsoever shall Supplier be obliged to provide compensation beyond the direct damage incurred by customer up to an amount not exceeding the payment receivable from the insurer of Supplier in connection with the damage, i.e. up to a maximum of fifty per cent of the contract price.
4. Under no circumstances whatsoever shall Supplier be liable for acts by its subordinates, including but not limited to damage caused by gross negligence or intent.
5. Customer shall indemnify and hold harmless Supplier against all claims by the employees or representatives of customer or by third parties relating to injury or other damage caused directly or indirectly by use of products Supplier delivered to customer.
Section 9 Intellectual property rights and confidentiality
1. Without prejudice to provisions made elsewhere in the General Conditions, Supplier reserves all its intellectual property rights and associated powers in the widest sense. Customer shall not obtain under the agreement with Supplier or in any way other any intellectual property rights held by Supplier.
2. All items Supplier makes available to customer - including but not limited to drawings and brochures - shall be solely for use by customer and shall not be reproduced, changed, disclosed, commercially exploited or divulged to third parties without the explicit prior written permission of Supplier.
3. Customer shall not make any changes to delivered goods or provide delivered goods with another brand name, trade name or packaging, unless arrangements to the contrary have been agreed with Supplier.
4. Neither Supplier nor customer shall disclose any confidential information obtained from the other party under the agreement. Information shall be considered confidential if either party states that such is the case or if such is evident from the nature of the information, even if the information has not explicitly been designated confidential.
Section 10 Retention of title
1. All goods delivered by Supplier shall remain its property until such time as customer has paid in full all debts owed to Supplier - including debts arising from chargeable interest and costs – under all agreements concluded with customer.
2. Until such time as full payment has been received, customer shall not dispose of delivered goods in any way whatsoever and shall not encumber them with third-party rights. Customer shall inform Supplier as soon as reasonably possible if third parties seize or seek to establish or enforce rights to delivered goods covered by this retention of title.
3. At the first request of Supplier, customer shall take out and maintain insurance for goods covered by this retention of title against fire, explosion, water damage and theft and shall allow Supplier to inspect the insurance policy at its first request.
4. Customer shall pledge to Supplier at its first request, in the way prescribed in Article 3:239 of the Netherlands Civil Code, all claims customer has on insurers in respect of goods covered by the retention of title.
5. Customer shall pledge to Supplier at its first request, in the way prescribed in Article 3:239 of the Netherlands Civil Code, all claims customer obtains on its customers on the sale of goods delivered by Supplier that are covered by the retention of title.
6. Customer shall afford Supplier all co-operation necessary to enable Supplier to exercise the retention of title by retrieving the goods.
Section 11 Force majeure
1. Supplier shall not be bound to fulfil any obligation if force majeure prevents it from doing so. Force majeure means all external circumstances, foreseen and unforeseen, over which Supplier has no control and that make it impossible for Supplier or its engaged third parties to fulfil their obligations. This shall in any event include delays and late delivery or non-delivery by third parties, road blockades or other transport difficulties, fire, disasters (natural and otherwise), strikes, industrial accidents, riots, civil unrest, wars and legal trade restrictions. Force majeure experienced by suppliers or other third parties upon whom Supplier is dependent shall also be considered force majeure on the part of Supplier.
2. In so far as the Supplier has already met or will be able to meet some of its obligations under the agreement at the time of occurrence of force majeure, Supplier shall have the right to invoice separately any fulfilled or fulfillable performance. Customer shall pay such an invoice as if it were a separate agreement.
Section 12 Applicable law and disputes
1. Dutch law shall govern all offers made by Supplier and all agreements concluded between Supplier and customer. These General Conditions explicitly exclude application of the Vienna Sales Convention.
2. All disputes shall be resolved solely by a court of law with jurisdiction at Breda, unless Supplier elects to submit a dispute to a court of law with jurisdiction at the place of business of customer.