TERMS AND CONDITIONS OF SALE AND DELIVERY
Article 1. General
- These terms and conditions are applicable to every offer, quotation and agreement between Fire-Up International B.V., hereafter referred to as “FUI”, and the “Other Party” to which FUI has declared these terms and conditions applicable, insofar as these terms and conditions have not been explicitly departed from by the parties in writing.
- The present terms and conditions are also applicable to any agreements with FUI, for the execution of which third parties are engaged by FUI.
- The terms and conditions have also been formulated for the benefit of FUI’s employees and its board of directors.
- The applicability of the Other Party’s purchasing rules or any other conditions is explicitly rejected.
- If, at any time, that one or more of the provisions of these terms and conditions prove to be null and void, or become nullified, the remaining provisions will remain fully applicable. FUI and the Other Party will then enter into negotiations in order to agree on new provisions to replace the null and void or nullified provisions; in so-far-as possible the new provisions will follow the purpose and intent of the original provisions.
- If there is any uncertainty as to the interpretation of one or more of the provisions of these terms and conditions, it or they should be interpreted ‘according to the spirit’ of said provisions.
- In the event that a situation arises between the parties which is not regulated by these terms and conditions, the situation should be resolved according to the spirit of these terms and conditions.
- In the event that a situation arises where FUI does not demand strict observance of these terms and conditions, this should not be taken to mean that the wider provisions are not applicable, nor that FUI in any way forfeits his right to demand strict observance of these terms and conditions in other situations.
Article 2. Quotations and offers
- All quotations and offers by FUI are made without obligation, unless a deadline for acceptance has been set out in the quotation. An offer or quotation automatically expires if the product the quotation or offer relates to becomes no longer available.
- FUI cannot be obliged to honor any quotations or offers if it is reasonable for the Other Party to perceive that the quotations or offers, or any part thereof, contain obvious errors or mistakes in their formulation.
- The prices stated in a quotation or offer are exclusive of BTW (Dutch VAT) and any other levies imposed by the government, and of possible additional costs within the framework of the agreement, including the costs traveling and accommodation, postage and administrative charges, unless stated otherwise .
- The prices are exclusive of applicable Nedvang packaging premiums and packaging tax.
- In the event that acceptance of an offer or quotation deviates (whether significantly or not) from the quotation or offer itself, FUI will not be bound by the modification. The agreement will not be effected according to this modified acceptance, unless FUI agrees.
- A compound price quotation does not oblige FUI to execute part of the order against the corresponding part of the price stated. Offers or quotations do not automatically remain valid for future orders.
Article 3. Contract period; delivery periods, execution and alteration of agreement
- The agreement between FUI and the Other Party is entered into for an indefinite period, unless the nature of the agreement makes a fixed period apparent, or unless the parties have explicitly agreed otherwise in writing.
- If a date has been agreed upon, or has been stated for the completion of certain activities or for the delivery of certain goods, and FUI fails to satisfy this term then this does not constitute a breach of contract. Therefore, in the event that FUI fails to meet a stated deadline, the Other Party must send FUI written notice of default. In such case, FUI must be given a reasonable period within which to perform the agreement.
- In the event that FUI requires information from the Other Party for the performance of the agreement, the execution period will not commence until the Other Party has supplied full and correct information to FUI.
- Delivery will be from the premises of FUI. The Other Party is obliged to accept the delivery of the goods the moment they are put at his disposal. In the event that the Other Party refuses to accept the goods or if it is negligent in providing details or instructions necessary for delivery, FUI is entitled to store the goods at the Other Party’s account and risk.
- FUI has the right to engage third parties to carry out certain operations.
- FUI has the right to execute the agreement in phases and to send a separate invoice for each completed stage of the work.
- In the event that the agreement is carried out in phases, FUI may postpone the execution of subsequent phases until the Other Party has approved the results of the completed phase in writing.
- In the event that it proves necessary to alter or supplement the agreement in order for it to be carried out properly, the parties will proceed to modify the arrangement by mutual agreement in good time. If the nature, scope or content of the agreement is altered, whether or not at the request or instruction of the Other Party or of the competent authorities etc., and if, as a result, the agreement is altered in qualitative and/or quantitative terms, this may also have implications for the original agreement. In such a situation, the sum originally agreed upon may be increased or reduced. Insofar as possible, FUI will provide an estimate of this change before proceeding. Following an alteration to the agreement, the originally agreed execution period may also be altered. The Other Party accepts the possibility of alteration to the agreement, including to the price and to the period of execution.
- In the event that the agreement is altered, which will include any additions, FUI is entitled to postpone implementation until the competent person within FUI has given his consent, and the Other Party has agreed to the revised price quoted for the execution and to the altered conditions, including the revised timing of its execution. If the altered agreement is not, or not immediately, implemented, this shall not constitute a non-performance by FUI nor shall it be a reason for the Other Party to terminate the agreement. FUI may refuse a request for alteration to the agreement, without this constituting default, if such alteration could have a qualitative or quantitative effect on, for instance, the operations to be carried out or the goods to be delivered within the framework of the altered agreement.
- Should the Other Party be in default regarding the proper observance of its obligations towards FUI, the Other Party will be liable for all losses (including costs) incurred directly or indirectly by FUI as a result.
- If FUI agrees a fixed price with the Other Party, FUI shall nonetheless be entitled to increase that price at any time without the Other Party having the right to revoke the agreement for this reason, as long as the price increase arises from a competence or an obligation pursuant to the law or other regulations, or it is due to an increase in the price of raw materials, labour costs etc., or to other reasons that could not reasonably have been foreseen at the time the agreement was entered into.
- In the event that a price increase, other than one due to an alteration to the agreement, exceeds 10% and occurs within three months of conclusion of the agreement, and provided the Other Party has the right to appeal under Title 5, Chapter 3 of Book 6 of the Dutch Civil Code, then the Other Party is entitled to dissolve the agreement by means of a written statement to that effect, unless FUI is then prepared to execute the agreement on the basis of what was originally agreed, or if the price increase results from a competence or an obligation resting on FUI pursuant to a law, or if it was agreed that delivery would take place more than three months after purchase.
Article 4. Suspension, dissolution and interim termination of the agreement
- FUI is entitled to suspend its obligations or to dissolve the agreement if:
– the Other Party does not, or does not observe its obligations under this agreement in full and in good time;
– after conclusion of the agreement, circumstances come to FUI’s notice that provide good reason for fearing that the Other Party will not fulfil its obligations;
– on conclusion of the agreement, the Other Party has been requested to provide security for the fulfilment of its obligations under the agreement, and this security is either not forthcoming or insufficient;
– due to the delay on the part of the Other Party, FUI cannot reasonably be expected to fulfil the agreement against the originally agreed conditions, FUI is entitled to terminate the agreement.
- Furthermore, FUI is entitled to dissolve the agreement if circumstances occur of such a nature that fulfilment of the agreement is impossible, or if circumstances occur of such a nature that unaltered adherence to the agreement cannot reasonably be expected of FUI.
- In the event that the agreement is dissolved, any valid claims by FUI against the Other Party become immediately due and payable. If FUI suspends his performance of his obligations, he retains all rights ensuing from the law and this agreement.
- In the event that FUI proceeds to a suspension or dissolution, he will not be obliged to compensate for losses and expenses that arise as a result.
- If the dissolution is attributable to the Other Party, FUI is entitled to compensation for losses, including any expenses arising directly or indirectly therefrom.
- If the Other Party fails to fulfil its obligations under the agreement and this non-fulfilment justifies dissolution, FUI is entitled to dissolve the agreement immediately and with immediate effect, without any obligation on his part to pay any damages or compensation, whereas the Other Party, on account of its default, will be liable to pay damages or compensation.
- In the event that the agreement is terminated prematurely by FUI, then, in consultation with the Other Party, FUI will assist in the transference to third parties of operations still to be performed, unless the termination is as a result of the Other Party failing to fulfil its obligations. If the transference of the operations involves extra costs, these will be charged to the Other Party. The Other Party is obliged to pay these costs within the time limit given, unless FUI states otherwise.
- In the event of a liquidation, of (an application for) a moratorium or bankruptcy, of attachment of the Other Party’s goods – if and insofas as the attachment has not been annulled within three months – of debt restructuring or of any other circumstance due to which the Other Party can no longer freely dispose of its assets, FUI is either free to terminate the agreement immediately and with immediate effect, or to cancel the order or agreement without any obligation to pay any damages or compensation. In such a situation, any outstanding claims of FUI against the Other Party become immediately due and payable.
- In the event that the Other Party cancels all or part of a placed order, the goods ordered or prepared in readiness, including any costs associated with delivery and transport thereof, and the working hours utilized or reserved for the execution of the agreement, will be charged in full to the Other Party.
Article 5. Force majeure
- FUI is not obliged to fulfil any obligation towards the Other Party if he is hindered in doing so as a result of a circumstance which is not due to a fault on his part, and for which he is neither accountable under law, a legal act or according to views prevailing customs.
- Within the framework of these terms and conditions, force majeure shall mean, apart from what the law and jurisprudence understand by it, all external causes, whether these could be anticipated or not, on which FUI can exert no influence, and because of which FUI is unable to fulfil his obligations. This includes labour strikes within FUI or involved third parties. FUI shall also have the right to claim force majeure even if the circumstances hindering fulfilment of the agreement develop after FUI should have fulfilled his obligation.
- During the period the force majeure persists, FUI may suspend his obligations arising from the agreement. If this period lasts longer than two months, either party may dissolve the agreement, without any obligation to compensate the other party for losses incurred.
- Insofar as FUI has partly fulfilled, or will be able to fulfil, his obligations arising from the agreement at the start of force majeure, and an independent value can be assigned to the part which has been or is to be fulfilled, then FUI is entitled to issue a separate invoice for the part already fulfilled or to be fulfilled. The Other Party is obliged to pay this invoice as if it represents a separate agreement.
Article 6. Payment and collection charges
- Payment must be received within 14 days of the invoice date, in accordance with the method indicated on FUI’s invoice, unless different payment terms have been agreed in writing between FUI and Other Party. FUI is entitled to issue periodic invoices.
- In the event that the Other Party fails to pay an invoice on time, the Other Party will be deemed in default by operation of law. The Other Party is then liable to pay interest at 1% per month, unless the statutory interest rate is higher, in which case the statutory interest rate will be applied. The interest on the amount due will be charged as from the moment the Other Party is in default until the moment the debt has been paid in full.
- FUI is entitled to apply payments effected by Other Party in the first instance to cover incurred costs, then to reduce the outstanding interest, and finally to deduct them from the principal sum due and the accruing interest.
- FUI may, without defaulting, refuse an offer to pay, if the Other Party assigns a different sequence for the attribution of its payment. FUI may refuse to accept full redemption of the principal if all outstanding interest and collection costs are not also settled at the same time.
- The Other Party is not entitled to make deductions from the amount owed by him to FUI.
- Objections to the invoiced amount do not suspend the obligation to pay. An Other Party that is not entitled to appeal under Chapter 6.5.3 (Sections 231 to 247 of Book 6 of the Dutch Civil Code (Burgerlijk Wetboek), is not entitled to suspend payment of an invoice for any other reason.
- If the Other Party is in default or late in the fulfilment of its obligations, all reasonable costs incurred in obtaining settlement out of court will be at the expense of the Other Party. Such extrajudicial expenses will be calculated in line with customary Dutch debt collection practices, the calculation method currently used is based on Rapport Voorwerk II (Dutch report on extrajudicial costs). If, however, FUI has reasonably incurred higher costs than calculated using the above method, the Other Party will be liable for the actual costs incurred. Any legal and enforcement costs incurred will also be recovered from the Other Party. The Other Party is also liable to pay interest on the collection costs due.
Article 7. Retention of Title
- All goods delivered by FUI, within the framework of the agreement, remain the property of FUI until the Other Party has fulfilled all obligations arising from the agreement(s) entered into with FUI.
- Goods delivered by FUI that are subject to retention of title in accordance with paragraph 1 above, may neither be resold nor used as a form of payment. The Other Party is not entitled to pledge the goods subject to retention of title nor to otherwise encumber them in any other way.
- The Other Party must do all that might reasonably be expected of it to safeguard the property rights of FUI.
- In the event that third parties secure attachment of the goods delivered under these conditions of ownership, or attempt to vest rights in or assert rights over them, the Other Party is obliged to notify FUI of this immediately.
- The Other Party undertakes to insure and keep insured the goods delivered under retention of title against fire, explosion, and water damage, as well as against theft, and make the policy available for perusal by FUI on request. In the event of any insurance pay out, FUI is entitled to receive the disbursed amount. If necessary, the Other Party undertakes in advance to lend its assistance to FUI for all that should appear necessary or desirable within that framework.
- Should FUI wish to exercise his property rights referred to in this article, the Other Party, in advance, grants unconditional and non-revocable consent to FUI, and to third parties designated by FUI, to enter all places containing FUI’s property for the purpose of recovering said goods.
Article 8. Guarantees, examination and claims, period of limitation
- The goods delivered by FUI must meet the usual requirements and standards that can reasonably be set at the moment of delivery, and be fit for the purposes for which they are intended during normal use in The Netherlands. The guarantee referred to in this article applies to goods that are intended for use within The Netherlands. Where goods are intended for use outside of The Netherlands, the Other Party must itself verify whether they are suitable for use in that place and whether they fulfil the conditions stipulated there. In latter case, FUI may vary the guarantee and the conditions in respect of the goods to be delivered or the operations to be executed.
- The guarantee detailed in paragraph 1 of this article will remain in force for a period of 6 months from delivery, unless the nature of the delivered good suggest otherwise or the parties have agreed otherwise. If the guarantee given by FUI concerns a good that was produced by a third party, the guarantee is limited to the one given by the producer of the good, unless stated otherwise.
- Any form of guarantee is cancelled if a defect was caused by, or resulted from, injudicious or improper use of the good, or through use after the expiry date, improper storage or maintenance by the Other Party and/or third parties; if, without permission of FUI, the Other Party or third parties have made, or have tried to make, alterations to the good; if items were attached to it that should not have been attached to it; or if the good was processed or treated in any other way than that prescribed. The Other Party is not entitled to claim under the guarantee if the defect arose or resulted from circumstances over which FUI cannot exert any influence, including weather conditions (for example, but not exclusively, extreme rainfall or temperatures).
- The Other Party is obliged to examine the delivered goods, or have the delivered goods examined, as soon as the goods are put at its disposal, or as soon as the relevant operations have been carried out. The Other Party should verify that the quality and/or quantity of the delivery corresponds to what has been agreed, and that it meets the requirements agreed between parties in this respect. Any visible defects must be reported in writing to FUI within seven days of delivery. Any non-visible defects should be reported to FUI in writing immediately upon, but no later than fourteen days after, discovery. The report must contain a detailed description of the defect so that FUI can respond appropriately. The Other Party must enable FUI to investigate the complaint.
- Even if the Other Party submits a claim in good time, this does not suspend his obligation to pay. Furthermore, the Other Party remains obliged to accept and pay for any remaining goods on order.
- If a defect is not reported within these time limits, the Other Party is no longer entitled to repair-, or replacement of the good, or to compensation.
- If it is established that a good is defective and that this has been reported in good time, FUI will, at his own discretion, replace the defective good or arrange for its repair, or pay appropriate compensation to the Other Party, within a reasonable period of receiving it back or, if returning it is not reasonably possible, after written notification regarding the defect has been given by the Other Party. If the good is to be replaced, the Other Party is obliged to return the good to be replaced to FUI, and to grant FUI ownership thereof, unless FUI states otherwise.
- If a claim is established to be unfounded, the Other Party will be liable for all expenses, including the costs of investigation, incurred by FUI.
- After the expiry of the guarantee period, all costs for repair or replacement, including administrative, shipping, and call-out costs, will be charged to the Other Party.
- Irrespective of standard statutory limitation periods, the limitation period for all claims and allegations against FUI, and third parties engaged by FUI in the execution of the agreement, is one year.
Article 9. Liability
- In the event that FUI should be liable, this liability is limited to that stipulated in these provisions.
- FUI is not liable for damage of whatever nature that arise as a result of incorrect and/or incomplete data provided to FUI by or on behalf of the Other Party.
- In the event that FUI should be liable for damage, FUI’s liability is limited to a maximum of twice the invoice value of the order or to that part of the order to which the liability relates.
- FUI’s liability in any event is limited to the amount paid out by an insurer, if such an occasion arises.
- FUI is only liable for direct damage.
- Direct damage will exclusively be understood to include only the reasonable costs incurred to determine the cause and the extent of the damage, insofar as the determination relates to damage within the meaning of these terms and conditions, any reasonable costs incurred in order to bring FUI’s defective performance in line with the agreement, in as much as these can be attributed to FUI, and reasonable costs incurred to prevent or limit the damage, insofar as the Other Party can prove that these costs have resulted in a limitation of the direct damage referred to in these terms and conditions.
- FUI is never liable for indirect damage, including consequential loss or damage, loss of interest or savings, and damage resulting from the interruption of business operations.
- The liability limitations stated in this article will not apply if the damage is caused by intent or gross negligence on the part of FUI or its supervisory staff.
Article 10. Transfer of risk
- The risks associated with loss, damage, or depreciation are transferred to the Other Party immediately the goods destined for the Other Party are brought under the latter’s control.
Article 11. Indemnification
- The Other Party will indemnify FUI against any claims by third parties that suffer a damage in connection with the execution of the agreement where the cause can be attributed to ar party other than FUI.
- If FUI is challenged by third parties on this account, the Other Party is obliged to assist FUI both in and out of court, and to promptly do all that might reasonably be expected of it. Should the Other Party fail to take proper action, FUI will be entitled to proceed to take action himself, without first serving notice. All resultant costs incurred and losses suffered by FUI and third parties will be entirely for the account of the Other Party.
Article 12. Intellectual property
- FUI reserves all rights and authority due to him by virtue of the Copyright Act and other intellectual property legislation and regulations. FUI is also entitled to apply any knowledge gained through the execution of this agreement for other purposes provided that any strictly confidential information relating to the Other Party is not brought to the notice of third parties.
Article 13. Applicable law and disputes
- The law of The Netherlands applies exclusively to all legal relationships to which FUI is a party, irrespective of whether an agreement is entirely of partly carried out in another country, or if the Other Party involved in the legal relationship has its domicile abroad. The Vienna Convention on the International Sale of Goods (CISG) does not apply.
- The court in the place of domicile of FUI has exclusive jurisdiction over disputes, unless the law requires otherwise. Nevertheless, FUI is always entitled to submit a dispute to the legally competent court.
- Parties will only lodge an appeal through the courts after they have made every effort to settle a dispute in mutual consultation. In the event of a difference in interpretation between the original Dutch text and the English translation, the Dutch original will prevail.