General delivery and payment terms of:
Faes Cases BV
KvK Eindhoven : 61705063
VAT : NL8544.54.512.B01
Hamelendijk 2
5541 RA Reusel
Phone number : +31 (0)497 381165
Article 1: DEFINITIONS
In these general terms and conditions, the following terms are used in the following sense unless expressly stated otherwise:
Faes Cases BV: the user of the general conditions, the seller, the producer, the contractor;
Other party: the other party of Faes, the buyer, the customer;
Article 2: GENERAL
1. These conditions apply to each assignment, offer and contract between Faes and customer insofar as Faes has not deviated from these conditions in writing;
2. The present conditions also apply to all contracts with Faes for the execution of which Faes makes use of the services of third parties;
3. The applicability of any conditions of the other party is expressly excluded;
4. In case one or more of the stipulations in these conditions are or become void, the remaining stipulations of these conditions remain applicable.
Article 3: OFFERS, PURCHASES AND AGREEMENTS
1. Faes’ offer is without obligation, unless expressly agreed otherwise;
2. Contracts are first concluded by written order confirmation, in whatever form, or by acceptance of an offer, or by execution of the contract by Faes;
3. For verbal agreements, the invoice shall be deemed to reflect the agreement accurately and completely, subject to complaints within 30 days of the invoice date;
4. If during the production or activities Faes receives a verbal extra work assignment from the other party or an employee or representative of the other party and after execution of the extra work the other party has accepted this work or at any rate has not protested against the extra work, then Faes may assume that the extra work has been carried out at the explicit request of the other party at the prices and rates applied by Faes;
5. If a natural person concludes a contract in the name or on behalf of another natural person, he – by signing the contract – declares that he is authorized to do so. This person is jointly and severally liable, next to the other natural person, for all obligations resulting from the contract;
6. Faes reserves the right to refuse an order/commission without giving reasons;
7. If the acceptance by the other party deviates from the offer included in the quotation, Faes shall not be bound by it. The contract shall then not be concluded in accordance with this deviating acceptance, unless Faes indicates otherwise;
8. The prices in the offers are in Euros, exclusive of VAT and other government levies such as fees and taxes, as well as exclusive of storage, export, shipment and possible transport costs, unless expressly agreed upon otherwise;
9. In case Faes takes care of shipment/transport of the purchased goods, this takes place at the risk and expense of the other party;
10. If delivery takes place C.O.D., Faes always charges C.O.D. costs to customer;
11. A composite quotation does not oblige Faes to execute a part of the order against a corresponding part of the quoted price;
12. Offers or quotations do not apply to follow-up orders.
Article 4: MODELS/PICTURES
1. The models, images, specifications, numbers, sizes, weights or descriptions included in the catalogs/offers/advertisements are shown only as indications.
2. Written and oral approval of typesetting, printing, photographic, and film proofs and other types of proofs by the other party apply as recognition that Faes has correctly executed the activities preceding the proofs;
3. Any typesetting, printing, photo and film proofs and other types of proofs produced at the request of the other party will be charged in addition to the agreed price, unless it has been expressly agreed upon that the costs of these proofs are included in the price.
Article 5: PRICE AND COSTS.
1. Faes may pass on price increases after 3 months if between the moment of offer or quotation and execution of the contract/delivery price changes of more than 5% have occurred in respect of for instance social security charges, sales tax, exchange rates, wages, raw materials, semi-finished products or packaging materials;
2. Faes will notify the other party of the intention to increase the price or rate in writing. Faes will thereby mention the extent of the increase and the date on which it will take effect.
Article 6: CANCELLATION
1. Should customer, after a contract has been concluded and before Faes starts the production of the goods, wish to cancel it, 10% of the order price (exclusive of VAT) will be charged as cancellation costs, without prejudice to the right of Faes to full damages including lost profits;
2. If at cancellation customer refuses to take delivery of the goods that Faes has already produced specially for customer, customer is also bound to pay all costs resulting from this to Faes;
3. In case a matter is (temporarily) not deliverable, customer will receive notice thereof from Faes no later than one month after receipt of the order. In that case customer can cancel the order at no cost. In case customer has already paid the matter to Faes, repayment will be made to customer or settlement will take place;
4. Cancellation needs to take place in writing.
Article 7: SUSPENSION AND TERMINATION
1. Faes is authorized to suspend the observance of the obligations or to dissolve the contract in case: customer does not, not timely or not completely meet the obligations of the contract; after the conclusion of the contract circumstances come to the knowledge of Faes that give good ground to fear that customer will not, not timely or not completely meet the obligations. In case there is good ground to fear that other party will only partially or not properly observe the obligations, the postponement is only permitted insofar as the shortcoming justifies it; at the conclusion of the contract other party has been requested to provide security for the settlement of his obligations from the contract and this security has not been provided or is insufficient;
2. Furthermore, Faes is authorized to dissolve the contract (have the contract dissolved) if circumstances arise of such a nature that observance of the contract can no longer be required or can no longer be required according to the standards of reasonableness and fairness, or if other circumstances arise of such a nature that unchanged maintenance of the contract can no longer be reasonably expected;
3. If the contract is dissolved, the claims of Faes on other party are immediately claimable. In case Faes suspends the observance of the obligations, it retains its claims from the law and the contract. Faes always reserves the right to claim damages.
Article 8: EXECUTION OF THE AGREEMENT.
1. Faes will execute the contract to the best of his knowledge and ability and in accordance with the requirements of good workmanship. All this on the basis of the specifications agreed upon by parties;
2. Faes shall determine the manner of execution of the contract, insofar as it has not been expressly agreed upon otherwise in writing between the parties;
3. Faes is not liable for damages, of whichever nature, because Faes has relied on incorrect and/or incomplete data and specifications provided by customer;
4. Customer shall always inform Faes of the purpose for which the case is purchased, in default of which Faes cannot be held liable for damages resulting from the uselessness;
5. If and insofar as a proper execution requires this, Faes has the right to have work carried out by third parties;
6. If the other party has reserved to itself the execution of certain parts of the work, the other party shall be liable for untimely supply or untimely execution thereof;
7. Customer shall see to it that all data and approvals, of which Faes indicates that they are necessary or of which customer must reasonably understand that they are necessary for the execution of the contract, are supplied to Faes in time. In case the data and approvals necessary for the execution of the contract have not been provided to Faes in time, Faes has the right to suspend the execution of the contract and/or to charge the extra costs resulting from the delay to customer according to the usual rates;
8. If the commencement or progress of the work is delayed by factors for which the other party is responsible, the damage and costs resulting from this for Faes must be compensated by the other party;
9. Customer indemnifies Faes against possible claims of third parties, who suffer damage in connection with the execution of the contract and which damage can be attributed to customer.
10. If it has been agreed that the agreement will be executed in phases, Faes can suspend the execution of those parts to a next phase until the other party has approved in writing the results of the preceding phase.
Article 9: DELIVERY
1. Delivery of goods takes place FCA, unless parties expressly agree otherwise;
2. Should Faes deliver the goods, this always takes place at the delivery address most recently given by customer and known to Faes;
3. Other party must take delivery of the goods immediately after completion, unless agreed upon otherwise. When the goods are available for other party or are offered for delivery to other party, yet are not accepted by other party for whatever reason, delivery takes place through a written notification by Faes to other party;
4. In case customer refuses purchase or is negligent in providing information or instructions necessary for the delivery, Faes is entitled to store the goods at the expense and risk of customer. In case customer does not take delivery within two months, Faes is entitled to sell the matter to another party. When the goods can no longer be sold, Faes is entitled to destroy the goods. All damages resulting from sale or destruction are at the customer’s expense;
5. Call-off orders must be taken within the agreed terms, in default of which Faes is entitled to deliver the not yet delivered part of the order at once and to charge price increases to the other party;
6. If customer refuses to take delivery of the goods, the claims of Faes, including costs of transport and storage, against customer are immediately claimable;
7. If Faes needs data from other party in the framework of the execution of the contract, the term of delivery starts after other party has made these available to Faes;
8. In case Faes has stated a term of delivery, it is indicative. A stated delivery time is therefore never a fatal term. When a term is exceeded the other party must give written notice of default to Faes and grant him a reasonable term;
9. Faes is authorized to charge an advance amount. After payment of the advance amount delivery to Faes or execution will take place, unless parties have agreed upon otherwise.
Article 10: DELIVERY, RESEARCH AND RECLAMES
1. Customer is bound to examine (or have examined) the purchased goods or the executed assignment at the moment of delivery. Complaints about the delivered goods must be reported in writing by customer to Faes within 7 days. The notice of default must contain a description of the shortcoming that is as detailed as possible, so that Faes is able to react adequately;
2. Damages to the packaging or goods must be noted on the packing slip/shipping bill and reported to Faes in writing immediately. Faes will handle the complaint immediately after the notification;
3. If customer wishes to return defective goods, this shall only take place with the prior written permission of Faes, and in the manner Faes has indicated. Return shipments must be sent carriage paid in undamaged condition and in original packing.
4. The typesetting or printing errors and writing errors mentioned in the catalogs, internet site or offer can never give rise to any claim.
5. If a complaint is well-founded, Faes will replace or adapt the delivered goods, unless this has meanwhile become demonstrably meaningless to the other party. The latter must be made known by customer in writing. However, in all cases Faes is only liable within the limits of the stipulations in the articles “Guarantee” and “Liability”.
6. The handling of claims leaves intact the purchase and payment obligation of the other party.
Article 11: RISK TRANSFER
1. The risk of loss of or damage to the matters that are the object of the contract is transferred to the other party at the moment when these matters are legally and/or actually delivered to the other party and thereby brought under the control of the other party or of a third party to be designated by the other party or at the moment that the matters are ready for delivery, all this after the other party has been notified of this in writing;
2. Should Faes take care of the transport of the things that are the object of the contract, this takes place entirely at the expense and risk of other party. Customer takes care of proper transport insurance himself.
Article 12: FORCE MAJEURE
1. Faes has the right to dissolve the contract in case of force majeure. In case the force majeure situation is only temporary in nature, Faes has the right to suspend the execution of the contract. In case the period of force majeure lasts longer than 2 months the parties are authorized to dissolve the agreement without Faes being bound to any form of compensation.
2. In these conditions Force Majeure means, besides what is understood in this respect in the law and jurisprudence, all causes coming from outside, foreseen or not foreseen, on which Faes cannot exert influence, but through which Faes is unable to observe the obligations. Strikes in the company of Faes, computer and power failures, fire, theft, traffic congestion, export impediments and stagnation in delivery of raw materials/parts by suppliers are included;
3. Insofar as Faes has already partly met his obligations from the contract at the time of the commencement of Force Majeure or will be able to meet them, and independent value can be attributed to the met respectively to the part that has been met respectively to be met, Faes is entitled to separately invoice the part that has already been met respectively to be met.
Article 13: WARRANTY.
1. Goods produced by Faes meet the technical requirements and specifications that have been stated by Faes;
2. Faes provides a guarantee to the direct other party with regard to the quality of the goods it has produced up to 1 year after delivery, unless parties have agreed to another term in writing;
3. No warranty is given on services unless the parties have agreed otherwise in writing;
4. A warranty claim can only be made upon presentation of the purchase receipt;
5. The other party must check in advance itself whether the item to be delivered is suitable for the specified purpose;
6. The duration of the warranty is explicitly stated on the sales invoice;
7. This guarantee is limited to: manufacturing defects and therefore does not include damage resulting from improper, careless or inexpert use, assembly or maintenance by the other party or a third party; deliveries to the other party in the EU; to replacement of the purchased item;
8. This warranty shall lapse: upon resale of the delivered goods, unless the parties expressly agree otherwise
agreed upon; at operations, modifications, changes or repair by a third party to or of the delivered goods; at exposure to harmful substances and too high or too low temperatures; at overloading to tensile and compressive forces; by not using and maintaining the delivered goods in accordance with the directions for use; at use for a purpose other than the purpose for which the other party has given Faes or for which it is suitable.
9. As long as the other party does not fulfill its obligations arising from the agreements entered into by the parties, it may not invoke this warranty provision.
Article 14: LIABILITY AND RELEASE.
1. Should Faes be liable, this liability is limited to what has been arranged in this provision;
2. Faes is never liable for: deviations, damages, faults and defects that have remained unnoticed in goods approved by the other party; deviations, damages, faults and defects due to faulty assembly, maintenance or use by the other party or a third party; for indirect damage, including consequential damage, loss of turnover and profit, missed savings and damage due to business stagnation; damage as a result of rejected raw materials, because environmental legislation has changed after the conclusion of the agreement; unlawful, improper or unprofessional use by the other party or third party of the delivered goods; for damage as a result of use not in accordance with user instructions, environmental legislation or product information.
3. In case Faes is liable for damages, this liability shall be limited to at most the amount of the distribution to be made by the insurer of Faes, at any rate to at most the claim amount, at any rate that part of the claim to which the liability relates;
4. Faes will never be liable for any damage ensuing from advice given. Advice is always given on the basis of the facts and circumstances known to Faes and in mutual consultation, in which Faes always takes the intention of opposite party as a guideline and starting point;
5. Any claims for damages must be submitted to Faes in writing immediately after the damage has arisen;
6. Other party shall inform its customer in conformity with the directions for use and product information. Customer indemnifies Faes against claims of third parties if Faes is held liable for damages for which Faes is liable because customer has failed to do so;
7. Unless agreed upon otherwise, customer needs to investigate in advance himself whether the purchased product is suitable for the purpose for which he is going to use it. If afterwards it appears that the purchased goods are not suitable for the purpose, other party cannot hold Faes liable for the damages resulting from this.
8. The limitations of the liability for damages included in these general conditions do not apply if the damages can be attributed to intention or gross negligence of Faes or his subordinates;
9. The other party is bound to see to it that – prior to the delivery of data, documents, materials and/or products – copies/shadow files are made of the data carriers concerned.
10. In case the other party provides information carriers, electronic files or software etc. to Faes, he guarantees that the information carriers, electronic files or software etc. are free of viruses and defects;
Article 15: INTELLECTUAL PROPERTY AND AUTHORITY RIGHTS
1. Without prejudice to the provisions of these general terms and conditions, Faes reserves the rights and powers to which Faes is entitled on the basis of intellectual property law and the Copyright Act;
2. All matters sold and/or produced by Faes, designs, sketches, calculations, drawings, models and brochures provided by Faes are exclusively intended to be used by the other party and may not be reproduced, resold, adapted, altered, copied, reproduced, made public, or brought to the notice of third parties by him without the prior permission of Faes, unless the nature of the sold matters or provided documents dictates otherwise;
3. Moulds produced by Faes remain the property of Faes and are not handed over to the other party;
4. Customer is not entitled to remove the name or mark of Faes on the delivered goods.
5. Faes also reserves the right to use the knowledge acquired through the execution of the activities for other purposes, insofar no confidential information is hereby brought to the notice of third parties.
Article 16: OWNERSHIP RETENTION
1. All goods delivered by Faes, whether or not processed or treated, remain the property of Faes until customer has met all obligations from all contracts concluded with Faes;
2. Customer is not authorized to pledge the things falling under the retention of title nor to encumber them in any other manner;
3. The Other Party shall insure the items subject to retention of title at new-for-old value. The damages paid by the insurer take the place of the aforementioned goods and belong to Faes;
4. In case third parties seize the goods delivered under retention of title or wish to establish or exercise rights to them, customer is obliged to inform Faes of this as soon as can reasonably be expected;
5. In case Faes wants to exercise its property rights indicated in this article, customer now gives unconditional and irrevocable permission to Faes or third parties to be appointed by it to enter all those places where the property of Faes is located and to take back those things;
Article 17: EXPORT
1. Unless otherwise agreed in writing, payment for export transactions must be made by means of a confirmed and irrevocable letter of credit issued by a Dutch bank. On the basis of this letter of credit both transhipment and partial shipments are possible. The letter of credit can be transferred by Faes;
2. The other party guarantees that if an import certificate or license is required for the import of the goods in the country of destination, such import certificate or such import license has been or will be obtained before shipment, in default of which the other party shall be liable for the resulting damage.
3. The other party is responsible for compliance with applicable Dutch and foreign export control regulations.
Article 18: PAYMENT
1. Payment shall take place in cash, or in advance by means of an advance invoice, or within 8 days after invoice date in a way to be indicated by Faes in the currency in which has been invoiced. Objections against the amount of the invoice do not suspend the payment obligation;
2. Should opposite party remain in default of payment within the agreed term, opposite party shall be in default by operation of law. The other party will then owe interest of 1.5% per month or part thereof, unless the statutory interest rate or the statutory commercial interest rate is higher, in which case the highest interest rate will apply. The interest on the amount due and payable will be calculated from the moment the other party is in default until the moment the full amount is paid;
3. In case of liquidation, (application for) bankruptcy, admission of the other party to the legal debt rescheduling pursuant to the Dutch Natural Persons Debt Rescheduling Act, placement under guardianship, attachment or (provisional) suspension of payment of the other party the claims of Faes on the other party are immediately claimable;
4. Payments extend in the first place in reduction of the costs, then in reduction of the interest falling vacant and finally in reduction of the principal sum and the current interest.
Article 19: INCOME COSTS
1. If the other party is in default or omission in the (timely) fulfillment of its obligations, all reasonable costs incurred in obtaining satisfaction out of court shall be borne by the other party. In any case, the other party will owe collection costs in the event of a monetary claim. The collection costs are calculated in accordance with the collection rate as advised by the Netherlands Bar Association in collection cases, with a minimum of € 350.00;
2. In case Faes has incurred higher costs, which were reasonably necessary, these also qualify for reimbursement. Legal and execution costs are also at the opposite party’s expense.
Article 20: PERSONNEL
1. Customer is not authorized, without written consent of Faes, to enter into an employment relationship with an employee or staff member of Faes, during and within one year after the execution of the contract.
2. In case customer enters into a direct or indirect employment relationship with an employee without Faes’ consent, customer owes Faes a compensation of at least six times the gross monthly salary of the employee, based on 40 working hours per week. In addition, other party is obliged to entirely fulfil his obligations ensuing from the contract existing between parties.
Article 21: TRANSLATIONS OF THESE TERMS AND CONDITIONS
Only the Dutch language version of these terms and conditions is authentic. If a translation differs in any way, the Dutch text shall prevail.
Article 22: DISPUTES
All disputes resulting from the contract concluded between parties will in first instance be decided by the competent Dutch court in the domicile of Faes. Nevertheless Faes has the right to submit the dispute to the court that is competent according to the law or to a Board of Arbitration.
Article 23: APPLICABLE LAW
Dutch law applies to every contract between Faes and the other party. The Vienna Sales Convention is expressly excluded.
Article 24: DEPONATION
These terms and conditions have been filed at the office of the Chamber of Commerce and Industry for East Brabant under number 61705063.