General terms and conditions
GENERAL TERMS AND CONDITIONS FOR DELIVERY TO NON-CONSUMERS OF
Food & Fun bv, Bearsterdyk 13, 9025BP Bears, The Netherlands, firstname.lastname@example.org
hereinafter to be referred to as: F&F
Article 1 Definitions
In the present general terms and conditions, the following terms are used in the sense given below, unless explicitly indicated otherwise.
F&F: the supplier of the general terms and conditions.
Buyer: the F&F’s opposite party, acting in the course of a business or in the course of a profession.
Agreement: the agreement between the F&F and Buyer.
Article 2 General
- The stipulations of the present terms and conditions shall apply to each and every offer and agreement between F&F and a Buyer, to which F&F has declared the present terms and conditions applicable, insofar as parties have not explicitly deviated from the present terms and conditions in writing.
- The present terms and conditions shall also apply to all agreements with F&F,
- The Buyer’s general terms and conditions shall only apply if parties have explicitly agreed in writing that said general terms and conditions shall apply to the present agreement with the exclusion of the present general terms and conditions. In that event possibly still conflicting stipulations in the F&F’s and Buyer’s general terms and conditions shall only apply between parties, if and in so far that they are a part of F&F’s general terms and conditions.
- If one or more stipulations in the present general terms and conditions should be null and void or declared null and void, then the other stipulations of the present general terms and conditions shall remain fully applicable. The case ensuing, F&F and Buyer shall enter into negotiations to agree upon new stipulations replacing the null and void conditions, or, as the case may be, the conditions declared null and void, whereby the purpose and the meaning of the original conditions shall be heeded as far as possible.
Article 3 Offers and Tenders
- All offers shall be free of obligation unless the offer contains an acceptance term.
- The offers made by F&F shall be free of obligation; they shall be valid for a period of 14 days, unless indicated otherwise. F&F shall only be bound by the offers if the acceptance thereof is confirmed in writing by the Buyer within 14 days.
- Terms of delivery given in F&F’s offers shall only be tentative and exceeding these terms of delivery shall not entitle Buyer to dissolution or damages, unless explicitly agreed upon otherwise.
- The prices given in above-mentioned offers and tenders shall be exclusive of VAT and other government levies, as well as of shipment costs and possible packaging and administration costs, unless explicitly stated otherwise.
- If the acceptance deviates (on secondary items) from the offer given, F&F shall not be bound by it. The agreement shall in such event not be concluded in accordance with said deviating acceptance, unless F&F indicates otherwise.
- A compound quotation shall not oblige F&F to execute part of the assignment against a corresponding part of the given quotation.
- Offers and tenders shall not apply automatically to repeat orders.
Article 4 Execution of the Agreement
- F&F shall execute the agreement to the best of his knowledge and ability.
- If and in so far required for the proper execution of the agreement, F&F shall have the right to have certain work done by third parties.
- The Buyer shall see to it that F&F shall be provided in due time with all data which F&F has said to be necessary or which the Buyer must in all reasonableness understand to be necessary to the execution of the agreement. If F&F has not been provided in due time with the data necessary to the execution of the agreement, F&F shall have the right to suspend the execution of the agreement and / or to charge the Buyer for the additional costs resulting from the delay at the generally accepted rates.
- F&F shall not be liable for damage of whatever nature caused by the fact that F&F worked on the basis of incorrect and / or incomplete data provided by the Buyer, unless F&F should have been aware of said incorrectness or incompleteness.
- If parties have agreed that the agreement will be executed in stages, F&F can suspend the execution of the parts belonging to a following stage until the Buyer has approved in writing the results of the stage prior to it.
- Buyer shall safeguard F&F against possible claims filed by third parties who may sustain damage attributable to Buyer in connection with the execution of the agreement.
Article 5 Delivery
- Way of delivery will depend on product and buyer and needs to be mentioned in the offer.
- If delivery is made on the basis of the “Incoterms”, the “Incoterms” valid at the moment the agreement is concluded, shall apply.
- Buyer shall be held to take delivery of the goods the moment that F&F delivers them to him or has them delivered, or the moment at which the goods are put at Buyer’s disposal under the agreement.
- If the Buyer refuses to take delivery or fails to give the information or instructions necessary to the delivery, F&F shall be entitled to store the goods at Buyer’s risk and expense. This does not mean that payment can be postponed.
- If the goods are serviced, F&F shall be entitled to charge possible service charges. Said service charges shall then be invoiced separately.
- If, in the framework of the execution of the agreement, F&F requires data to be given by the Buyer, the term of delivery shall commence after the Buyer has provided F&F with said data.
- If F&F has given a term of delivery, it shall only be indicative. A given term of delivery shall therefore never constitute a term to be observed on penalty of forfeiture of rights. If it looks that a term might be exceeded, the F&F will inform the Buyer at the earliest possible time by email.
- F&F shall be entitled to deliver the goods in parts if this is agreed upon and mentioned in the order.
Article 6 Samples and Models
If a sample or model has been delivered to Buyer, then the assumption is the product to be delivered shall correspond with it unless it has been a prototype.
Article 7 Quality Control (QC) & Complaints
- Buyer will organise a QC tohave the delivered goods inspected before the moment of shipping. Inthis respect, Buyer must examine whether the quality and the quantity of the delivered goods comply with wat was agreed upon, or at least whether they meet the requirements applying to said goods in normal (business) transactions.
- Possible shortcomings must be communicated in writing to F&F within two days following the QC. Depending on the shortcommings the F&F will be enabled to rework the shipment and depending on the shortcommings this will be done as quickly as possible but give buyer not the right to terminate the agreement.
Article 8 Remuneration, Price and Costs
- F&F shall be allowed among others, to charge on price increases if changes in time between the moment the offer was made and the moment of execution of the agreement with respect to, e.g., exchange rates, salaries and wages, raw material, semi-finished products or packaging material.
- The prices given by F&F shall be exclusive of VAT and other government levies, as well as of the other expenses to be possibly made within the scope of the agreement, including shipment and administration costs, unless stated otherwise.
Article 9 Changes to the agreement
If it is shown during the execution of the agreement that the work to be done needs to be changed and / or supplemented in order to ensure its proper execution, parties shall adapt the agreement accordingly in due time and in mutual consultations.
Article 10 Payment
- When the offer is made based on delivery FOB or Ex-works payment can be done based on:
This means that the Buyer pays 30% within 14 days after ordering and 70% payment within 7 days after receiving a copy Bill of Lading by email. When the 70% payment is not done within 7 days then Buyer is responsible for any costs arising from this like storage of container. If this is not done within 6 weeks then the F&F can take the goods back, sell them and the 30% deposit will be used for covering expenses and not refunded.
- Transferable Letter of Credit (L/C)
This means that Buyer provides a non-negotiable transferable letter of Credit to F&F who is allowed to transfer this to F&F’s factory, if that is the case. Payment shall be released within 1 week after F&F sends the original Bill of Lading to the bank of the Buyer together with 3 packing lists and 3 invoices.
Article 11 Retention of Title
- All goods delivered by F&F, possibly also including designs, sketches, drawings, films, software, (electronic) files, etc., shall remain F&F’s property until Buyer has fulfilled all of his obligations under all agreements concluded with F&F.
- Buyer shall not be authorised to pledge or encumber in any way the goods falling under the retention of title.
- If third parties seize goods delivered subject to retention of title or wish to establish or assert a right to them, Buyer shall be held to inform F&F thereof as soon as can reasonably expected.
- The Buyer shall undertake to insure the goods delivered subject to retention of title and to keep them insured against damage caused by fire, explosion and water as well as against theft and make this insurance policy available for inspection on first demand.
- Goods delivered by F&F falling under the retention of title by virtue of the stipulations under 1. of the present article, may only be sold on within the framework of normal business activities and must never be used as instrument of payment.
- In the event that F&F wishes to exercise his ownership rights mentioned in the present article, Buyer shall give F&F or third parties to be appointed by F&F, now for then, unconditional and irrevocable permission to access all sites and locations where F&F’s property might be found and to take these goods back. All expenses shall be invoiced to Buyer.
Article 12 Guarantee
- F&F shall guarantee that the goods to be delivered shall meet the usual requirements and standards that can be set for and made upon them and that they shall be free of any defect whatsoever.
- The guarantee mentioned under 1 shall be valid for a period of 12 months following delivery.
- If the goods to be delivered does not comply with said guarantee, F&F shall, at his discretion, replace or see to the repair of the goods with the next shipment. In the event the good is replaced, the Buyer shall already now undertake to return the replaced good to F&F and to transfer ownership to F&F.
- The guarantee mentioned for this purpose shall not apply when the defect originated as the result of injudicious or improper use or when the Buyer or third parties have introduced changes or tried to introduce changes to the good without F&F’s consent in writing or if they have used it for purposes for which the good was not intended.
- If the guarantee given by F&F concerns a good produced by a third party, the guarantee shall be limited to the guarantee given by the producer of the good.
Article 13 Collection Charges
- If the Buyer fails to fulfil his obligations (in due time) or defaults on them, then all reasonable costs incurred to have all extrajudicial costs and debts paid shall be borne by the Buyer. If the Buyer remains in default of payment within the set time period, he forfeits a immediately payable fine of 15% on the amount due at that moment. This with a minimum of € 500.
- If F&F demonstrates that he has incurred higher expenses, which were necessary in reason, said expenses shall also qualify for reimbursement.
- The reasonable judicial and execution costs possibly incurred shall equally be borne by Buyer.
- Buyer shall owe interest over the made collection charges.
Article 14 Suspension and Dissolution
- F&F shall be authorised to suspend the fulfilment of the obligations under the agreement or to dissolve the agreement, in the event that:
- Buyer does not fulfil or does not fully fulfil his obligations resulting from the agreement
- after the agreement has been concluded, F&F learns of circumstances giving good ground to fear that the Buyer will not fulfil his obligations. If good ground exists to fear that the Buyer will only partially or improperly fulfil his obligations, suspension shall only be allowed in so far the shortcoming justifies such action.
- Buyer was asked to furnish security to guarantee the fulfilment of his obligations resulting from the agreement when the contract was concluded and that this security is not provided or insufficient. As soon as security is furnished, the authorisation to suspend shall lapse, unless said fulfilment has been unreasonably delayed because of it.
- F&F shall furthermore be authorised to dissolve the agreement (have the agreement dissolved) if circumstances arise of such a nature that fulfilment of the obligations becomes impossible or can no longer be demanded in accordance with the requirements of reasonableness and fairness, or if other circumstances arise of such a nature that the unaltered maintenance of the agreement can no longer be demanded in all reasonableness.
- If the agreement is dissolved, the F&F’s claims against the Buyer shall be forthwith due and payable. If F&F suspends fulfilment of his obligations, he shall retain his rights under the law and the agreement.
- F&F shall always retain the right to claim damages.
Article 15 Return of Goods Put at Buyer’s Disposal
- If F&F has put goods at Buyer’s disposal during and in connection with the execution of the agreement, Buyer shall be held to return the delivered goods within 14 days in their original state, free of defects and in their entirety. If Buyer fails to fulfil this obligation, all resulting costs shall be at Buyer’s expense.
- If, for any reason whatsoever, Buyer still remains in default to fulfil the obligation mentioned under 1. after being warned to do so, F&F shall be entitled to recover the resulting damage and costs, including replacement costs, from Buyer.
Article 16 Liability
- If the goods delivered by F&F are defective, F&F’s liability vis à vis the Buyer shall be limited to the arrangements made in the present terms and conditions under “Guarantee”.
- F&F’s liability shall at all times be limited to a maximum equalling the amount of the payment to be made by F&F’s insurer in the occurring event. For the USA this is zero/nil.
- Direct damage shall be understood to be exclusively:
- the reasonable costs incurred to establish the cause and the volume of the damage, in so far said establishment relates to damage in the sense of the present terms and conditions
- the reasonable costs possibly incurred to have F&F’s faulty performance meet the conditions of the agreement, unless such faulty performance cannot be attributed to F&F;
- the reasonable costs incurred to prevent or limit the damage, in so far Buyer demonstrates that said costs have led to the limitation of direct damage as meant in the present general terms and conditions.
- F&F shall never be liable for indirect damage, including consequential damage, loss of profit, lost savings and damage due to business stagnation.
- The limitations of liability for direct damage contained in the present terms and conditions shall not apply if the damage is due to intentional act or omission or gross negligence on the part of F&F or his subordinates.
Article 17 Transfer of Risk
The risk of loss of, or damage to the products being the subject of the agreement, shall be transferred to Buyer the moment said products are judicially and/or actually delivered to Buyer and therefore fall into the power of Buyer or of third parties to be appointed by Buyer.
Article 18 Force Majeure
- Parties shall not be held to fulfil any of their obligations if they are hindered to do so due to a circumstance through no fault of their own and which cannot be attributed to them by virtue of law, a legal action or generally accepted practice.
- In addition to the provisions of the law and the judge-made law in this respect, force majeure shall in the present general terms and conditions furthermore be understood to be any external circumstance, be it envisaged or not, on which F&F cannot have any influence but which prevents F&F from fulfilling his obligations. Industrial action at F&F’s company shall also be understood to be a circumstance of force majeure.
- F&F shall also be entitled to invoke force majeure if the circumstance rendering (further) fulfilment of the obligation(s) impossible, commences after the point in time on which F&F should have fulfilled his obligation.
4. Throughout the duration of the circumstances of force majeure, parties shall be entitled to suspend the fulfilment of their obligations. If this period lasts for more than two months, either of the parties shall be entitled to dissolve the agreement without any obligation to pay the opposite party damages.
5. Insofar F&F has already partially fulfilled his obligations resulting from the agreement at the moment the circumstance of force majeure commenced or shall be able to fulfil them and insofar separate value can be attributed to the part already fulfilled or still to be fulfilled respectively, F&F shall be entitled to invoice the part already fulfilled or still to be fulfilled respectively. The Buyer shall be held to pay this invoice as if it were a separate agreement.
Article 19 Safeguarding
- The Buyer shall safeguard F&F against claims filed by third parties concerning intellectual property rights on material or data provided by the Buyer, which shall be used for and during the execution of the agreement.
- If the Buyer provides F&F with information carriers, electronic files or software , the former shall guarantee that said information carriers, electronic files or software are free of viruses and defects.
Article 20 Intellectual Property and Copyrights
- Without prejudice to the other stipulations of the present general terms and conditions, F&F shall reserve the rights and authorities to which F&F is entitled under the Copyright Act.
- The Buyer shall not be allowed to introduce changes to the goods and material provided, unless the nature of the delivered goods and material dictates otherwise or if agreed upon otherwise in writing.
- The designs, sketches, drawings, films, software and other material or (electronic) files, possibly produced by the F&F within the framework of the agreement, shall remain F&F’s property, irrespective of the fact whether they have been handed over to the Buyer or to third parties, unless agreed upon otherwise in writing.
- All documents, such as designs, sketches, drawings, films, software, (electronic) files, etc., provided by F&F, shall be destined to be used by Buyer exclusively and must not be reproduced, made public or brought to the notice of third parties by Buyer without prior consent from F&F, unless the nature of the documents provided dictates otherwise.
- F&F shall reserve the right to use the knowledge gained due to the execution of the work for other purposes, in so far no confidential information shall be brought to the notice of third parties when doing so.
Article 21 Secrecy
- Both parties shall be bound to secrecy of all confidential information they have received within the scope of their agreement from each other or from another source. Information shall be considered to be confidential if the other party has indicated so or if the confidential character results from the nature of the information.
- If a statutory provision or a judicial decision compels F&F to convey confidential information to third parties designated by law or by the court and F&F cannot for that purpose invoke a legal right to refuse to give evidence or such a right acknowledged or allowed by the competent court, F&F shall not be held to pay damages or compensation and the opposite party shall not be entitled to demand the dissolution of the agreement on the ground of any damage resulting from said circumstance.
Article 22 Non-employment of the opposite party’s personnel
Throughout the duration of the agreement and for one year following termination thereof, Buyer shall not in any way, hire or employ in any other way, be it directly or indirectly, staff of F&F or of enterprises whom F&F has engaged to execute the present agreement and who are (were) involved in the execution of the agreement, without prior proper businesslike consultation on this matter, all this in accordance with the requirements of reasonableness and fairness.
Article 23 Disputes
The Court in F&F’s place of business shall have exclusive jurisdiction to hear actions. Parties shall only refer the matter to the court if they have done their utmost to solve the dispute in mutual consultations.
Article 24 Applicable Law
Dutch law shall apply to each and every agreement between F&F and the Buyer. The Vienna Sales Convention shall be explicitly excluded.
Article 25 Changes to the Terms and Conditions, interpretation and their location
- The present terms and conditions have been filed at the office of the Chamber of Commerce in Leeuwarden.
- The most recently filed version shall always apply, or, as the case may be, the version valid at the time the agreement was concluded.
Leeuwarden, May 16, 2018