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Terms and Conditions
General conditions of sale and delivery by A. FOETH B.V., with its registered seat in Barneveld, the Netherlands, lodged at the Registry of the Dutch Chamber of Commerce withnumber 09045984.
Article 1. Definitions
1.1 For the purpose of these General Conditions and all related documents, the capitalized terms as defined below in alphabetical order shall have the following meanings whereby these terms may be used in the singular or the plural form and vice versa, as the context so requires: ‘Affiliated Company’: any company, firm, partnership or other legal entity which (a) controls either directly or indirectly a Party, or (b) is controlled directly or indirectly by a Party, or (c) is directly or indirectly controlled by a company or entity which directly or indirectly controls a Party. ‘Control’ meaning the ownership of 50% (fifty percent) or more of the share capital or the right to exercise 50% (fifty percent) or more of the voting rights in the appointment of the directors of such company, firm, partnership or other legal entity, but any such legal entity shall be deemed to be an Affiliated Company only as long as such liaison exists. ‘Contract Price’: the total amount of the consideration as specified in the Contract which is payable by the Customer to Foeth for the sale and delivery of Equipment. Also referred to as Agreed price. ‘Contract’: the Contract concerning the sale and delivery of Equipment concluded in writing between Foeth and the Customer of which these General Conditions form an integral part, including all appendices, subsequent amendments hereof and/or addenda hereto as may be agreed upon in writing between Foeth and the Customer. ‘Customer’: the firm or company named as such in the Contract. ‘Documentation’: such as, but not limited to, manuals, hand books, certificates, instructions for maintenance and other Documentation accompanying the Equipment, as defined in the Contract. ‘Equipment’: the used Equipment as specified in the Contract. ‘Equipment Specifications’: the specifications, descriptions and drawings of Equipment agreed upon between the Parties and specified and defined as such in the Contract. ‘Force Majeure’: includes, but is not limited to, Act of God, directive of Government or of persons purporting to act therefore, legislation, war, civil disturbance, fire, drought, failure of power supply, explosion, riot, disturbances or standstill of essential production equipment, flood, earthquake, lock-out, transportation issues, shortage of essential raw materials, strike or other action taken by employees in contemplation of or furtherance of a trade dispute or owing to any liability to procure materials or force majeure of any other nature, including non- or late delivery due to non- or late fulfillment of obligations of subcontractors of Foeth or transportation companies engaged by Foeth and/ or solvency and/or liquidity issues and/or bankruptcy of third parties engaged by Foeth, in so far as any of these circumstances prevent the Foeth’s performance of the Contract. ‘General Conditions’: these general conditions of sale and delivery for Equipment by Foeth. ‘New Equipment’: Equipment that was not used prior to establishment of the Contract. ‘Party’: each of Foeth and the Customer separately. ‘Parties’: Foeth and the Customer together. ‘Purchase Order’: a written purchase order issued by the Customer for the purchase of Equipment by virtue of which Foeth shall deliver Equipment to the Customer, including any annex, addition or modification thereto. ‘Quotation’: each offer concerning the sale and delivery of Equipment, and if applicable supporting services, issued by Foeth to the Customer in writing. ‘Foeth’: A. Foeth B.V., a company organized and existing under the laws of the Netherlands, with its registered seat in Barneveld, the Netherlands, lodged at the Registry of the Dutch Chamber of Commerce with number 09045984, and its office address at Harselaarseweg 23, 3771 MA Barneveld, the Netherlands, and any of its Affiliated Companies.
1.2 In these General Conditions the term ‘in writing’ includes by post, fax, e-mail and any other electronic communication device customary in the market.
Article 2. Scope of application
2.1 These terms and conditions are applicable to and form an integral part of all Quotations and offers made by Foeth and all Contracts entered into by and with Foeth.
2.2 Deviations from these terms and conditions shall only be valid if agreed in writing and shall then apply exclusively to the Contract for which they were agreed.
2.3 The general terms and conditions of the Customer are explicitly rejected.
Article 3. Quotations, Contracts and Notifications
3.1 All Quotations of Foeth are non-binding and, unless otherwise declared by Foeth in writing, valid for a period of 14 (fourteen) days after the date thereof. Foeth reserves the right to withdraw or change its Quotations without compensation, even if they have been accepted by the Customer, as long as Foeth did not receive a Purchase Order from the Customer.
3.2 No Purchase Order shall be binding on Foeth unless it has been confirmed by an authorized representative of Foeth in writing. Such Purchase Order confirmation shall constitute a Contract.
3.3 In the event that Foeth does not respond to the Customer’s Purchase Order within 14 (fourteen) days after receipt thereof the Purchase Order shall be deemed rejected by Foeth.
3.4 If a Purchase Order is placed by the Customer without a prior Quotation and the Customer takes delivery of Equipment, this shall in any case constitute as Contract under these General Conditions and as a confirmation of the Purchase Order. Additional arrangements shall require the written approval of Foeth.
3.5 The Customer cannot derive any rights from oral commitments of Foeth, unless and to the extent those are confirmed in writing by Foeth.
3.6 All notifications, such as but not limited to notices of default, demands for compliance, setting delivery terms, relating to the Contract shall be made in writing. Only written notifications that have demonstrably been received by Foeth shall be binding to Foeth. TERMS AND CONDITIONS
3.7 Foeth cannot be held liable for errors in and deviations from: illustrations, drawings and statements of measurements and weights, dimensions, capacities, prices and images or other specifications in Quotations, price lists or other advertising and online materials.
Article 4. Price
4.1 All prices operated by Foeth are ex-works and based on known price-determining factors at the time at which the Quotation was made. Foeth is authorized at all times to adjust the prices with immediate effect if necessitated by a price-determining factor determined by law.
4.2 Unless explicitly stated otherwise, the Contract Price is always stated exclusive Value Added Tax (VAT) and other government levies, as well as of other expenses possibly to be made within the scope of the Contract, including costs of packaging, shipment, assembly costs, costs of putting Equipment into operation, administration costs and insurance charges which shall be added to the Contract Price and detailed separately on the invoice.
Article 5. Suspension and Dissolution
5.1 Foeth shall at all times be entitled to suspend the fulfillment of its obligations under the Contract or to dissolve the Contract, in the event that: (i) the Customer does not timely and fully fulfill its obligations under the Contract; (ii) Foeth learns of circumstances giving good ground to fear that the Customer will not timely and fully fulfill its obligations under the Contract. In such event suspension of the Contract by Foeth shall only be allowed in so far the shortcoming justifies such action; (iii) the Customer has been requested to furnish adequate security to guarantee the fulfillment of its obligations under the Agreement pursuant to article 6 hereof and this security is not provided or provided insufficiently to Foeth.
5.2 Foeth shall furthermore be entitled to dissolve the Contract if circumstances arise of such nature that fulfillment of Foeth’s obligations becomes impossible or can no longer be expected in accordance with the requirements of reasonableness and fairness.
5.3 If the Contract is dissolved pursuant to article 5.1 above, Foeth’s claims against the Customer shall be forthwith due and payable. If Foeth suspends fulfillment of its obligations, it shall retain its rights under the applicable law and the Contract.
5.4 Notwithstanding the foregoing sub article of this article 5, Foeth shall always retain the right to claim damages in case of suspension or dissolution.
Article 6. Payment
6.1 The Customer shall pay the Contract Price within 30 (thirty) days as from the invoice date, but in any event before the date of shipment of the Equipment, unless otherwise agreed in writing. Unless otherwise agreed in writing, payment shall be remitted cash on delivery without the application of any discount, by means of depositing or transferring the payable amount to a bank designated by Foeth.
6.2 Foeth shall be entitled, if it deems such necessary, to require payment in advance or to stipulate sufficient security to guarantee the Customer's compliance with his obligations to pay.
6.3 The Customer undertakes, also in the event of complaints being submitted, to promptly pay the invoices of Foeth without applying any deductions or claiming any set-off, discounts or any right to suspension unless otherwise agreed in writing.
6.4 All payments remitted by the Customer extend first to payment of any interest and any collection costs incurred by Foeth, and then to payment of the oldest outstanding invoice.
6.5 In the event that: a) the Customer’s company is wound up; b) the ‘Wet Schuldsanering Natuurlijke Personen’ (WSNP) is declared applicable (in case of a sole proprietorship); c) the owner of the Customer dies (in case of a sole proprietorship); d) the owner of the Customer is placed under conservatorship (in case of a sole proprietorship); e) the Customer’s company is attached; f) the Customer’s company is declared bankrupt; and/or g) a suspension of payment is granted to the company of the Customer; Foeth's payment claims against the
Article 7. Interest and costs
7.1 If payment has not been received within the period stipulated in the previous article, the Customer shall be held legally in default and shall be required to pay interest of 1% per (part of a) month over the outstanding amount as from the due date. All legal and extrajudicial costs incurred shall be for the Customer 's account. The extrajudicial collection costs shall amount to at least 15% of the amount owed by the Customer, including the interest referred to above.
Article 8. Deliveries
8.1 The Equipment shall be delivered ex-works, unless otherwise agreed in writing and shall be transported at the expense and risk of the Customer. If Foeth provides the transport, Foeth shall be entitled to take out transport insurance under the customary conditions for the Customer 's account. From the moment of delivery onwards, the Customer shall bear the risk and liability for the goods, without prejudice to Foeth's retention of title.
8.2 If the Contract relates to several goods, the delivery can be made as a whole or in batches. In the case of delivery in batches, the Customer shall be obliged to remit payment for the related invoice or the related part of an invoice as if it related to an individual delivery.
8.3 Agreed times of delivery are indicative only. In the event of any period being exceeded, the Customer shall not be entitled to compensation for damages. Neither shall the Customer be entitled to dissolve or terminate the Contract unless the period has been exceeded in such a way that the Customer cannot reasonably be expected to allow it to remain in force. In that case the Customer shall be entitled, after giving notice of default stipulating a reasonable period for compliance with the Contract, to dissolve or terminate the Contract by registered letter to the extent that this is strictly necessary.
8.4 In the event of the Customer failing to provide the required details, objects or items required for the implementation of the Contract to Foeth or failing to do so in good time, agreed delivery times shall be nullified, regardless of whether they were terms to be observed on penalty of forfeiture of rights, and the parties will be required to agree new delivery times. The Contract shall otherwise remain in force and Foeth shall be entitled to claim compensation for any damages suffered.
8.5 The delivery of Equipment may be subject to laws, customs and export control regulations of the European Union. Each Party shall comply with such laws, customs and regulations and shall not export Equipment without first obtaining all required governmental authorizations or licenses. TERMS AND CONDITIONS Notwithstanding anything to the contrary in these General Conditions or any Contract, Foeth shall in no event be obliged to deliver any Equipment or perform any of its obligations under these General Conditions or any Contract until the required approvals relating to the export regulations abovementioned have been obtained. Each Party agrees to provide the other Party with such information and assistance as may reasonably be required by the other in connection with securing such authorizations or licenses, and to take timely action to obtain all required support documents. Foeth shall be entitled to terminate the Contract or part thereof if the respective necessary approval(s) according to the applicable export regulations cannot be obtained within a reasonable time period.
Article 9. Retention of title
9.1 Foeth retains ownership of the delivered Equipment, including designs, sketches, drawings, films, software, (electronic) files, and so forth, until the date on which the Customer has completely fulfilled all of its obligations under all Contracts. However, if and to the extent that this would be in favor of Foeth, shall be deviated from the previous regime pursuant to article 10:128 paragraph 2 Dutch Civil Code, stating that the legal consequences of a retention of title for Equipment intended for export shall be governed by the law of the state of destination until the price is paid in full.
9.2 As long as Equipment are subject to retention of title, the Customer shall not alter, modify or otherwise amend the labelling on the packaging and Equipment and in general shall not modify the means of identification thereof.
9.3 The Customer shall not be authorized to pledge or encumber Equipment subject to retention of title.
9.4 If third parties seize Equipment subject to retention of title or wish to establish or assert a right to such Equipment, the Customer shall forthwith inform Foeth thereof.
9.5 In the event that Foeth wishes to exercise its ownership rights under this article 9, the Customer shall give Foeth or third parties appointed by Foeth, now for then, unconditional and irrevocable permission to access all of the Customer’s sites and locations where Foeth’s Equipment is located in order for Foeth to take them back.
9.6 If the Customer defaults in the punctual payment of any sum owing to Foeth, Foeth shall – without any prior notice or need to initiate legal action – be entitled to the immediate return at the Customer's risk and expense of all Equipment sold by Foeth to the Customer (or the documents of title thereto) in which the title has not passed to the Customer, and the Customer hereby authorizes Foeth to recover Equipment or documents and to enter any premises of the Customer for that purpose. Demand for, or recovery of, Equipment or documents of title by Foeth shall not of itself discharge the Customer’s liability to pay the whole of the Contract Price and take delivery of Equipment or Foeth's right to sue for the whole of the Contract Price. Foeth shall however in such case be entitled to dispose of said Equipment or to terminate the Contract without any liability towards the Customer.
9.7 The Customer shall inform Foeth without delay regarding any obligation to register a retention of title in an official register or any other formal obligation necessary for the retention of title to be valid in the country where Equipment shall be delivered. The Customer shall at its own costs fully cooperate, assist and give all consents to the Foeth regarding any formal obligation necessary to achieve a valid retention of title.
9.8 If the laws of the country in which the Equipment is located after delivery do not permit Foeth to retain the title to said Equipment but allow the retention of similar rights to the delivered Equipment, the Customer shall provide Foeth with such other equivalent right and shall assist Foeth in the fulfilment of any form requirements necessary for such purpose.
Article 10. Disclaimer of Liability and Warranties
10.1 The Equipment inclusive any accompanying Documentation is purchased by the Customer “as is” and if applicable, “as seen” (meaning: Foeth is selling, and the Customer is buying the Equipment in whatever condition it presently exists, and that the Customer is accepting the Equipment “with all faults”. Furthermore, the Documentation is provided insofar as available to Foeth). Foeth expressly makes no representation or warranty, express, or implied, including but not limited to warranties of merchantability or fitness for a particular purpose or any other matter with respect to Equipment.
10.2 The Customer is given the opportunity to conduct an on-site acceptance test with the Equipment purchased to assert himself that the Equipment is in conformity with the Equipment Specifications. Foeth shall not be responsible for the consequences of Customer’s failure to conduct an onsite acceptance test or for any inaccuracies, insufficiencies, or omissions in the Equipment Specifications.
10.3 Unless agreed otherwise in writing, any affirmation of fact or promises made by Foeth shall not be deemed to create an express warranty that Equipment shall conform to such affirmation or promise. Any descriptions, samples and Equipment Specifications offered for sale are not warranted by Foeth to be accurate or complete. If a model or sample was shown to the Customer, such model or sample was used merely to illustrate the general type and quality of Equipment sold by Foeth and not to represent that Equipment would necessarily conform to such model or sample. Any description is for the sole purpose of identifying Equipment and no affirmation, promise, description, sample or model shall be deemed part of the basis of the sale.
10.4 The Customer understands that the Equipment described herein has been used by persons other than Foeth. The Customer is warned and acknowledges that such Equipment may bear or contain hazardous chemicals or other hazardous materials which may be or may become, by chemical reaction or otherwise, directly or indirectly hazardous to life, to health, or to property (by reason of toxicity, flammability, explosiveness or for other similar or different reasons during use, handling, cleaning, reconditioning, disposal or at any other time after the Equipment leaves the possession and control of Foeth).
10.5 Unless these General Conditions provide otherwise, Foeth’s liability for direct damages shall at all times be limited to: (i) the amount the Customer was obliged to pay for the delivery of the Equipment which caused the direct damage (exclusive VAT); or (ii) if the damage is covered by Foeth’s commercial liability insurance, the amount actually paid out by the insurer.
10.6 Foeth shall not be liable for: (i) indirect damage, including but not limited to, consequential damage, loss of profit, lost savings and damage due to business stagnation; and (ii) any death or physical injury of employees of the Customer howsoever caused and no matter whether the death or physical injury results wholly or partly from any act or omission on the part of Foeth and/or its TERMS AND CONDITIONS Affiliated Companies, their employees or any other third party. The Customer shall indemnify Foeth against all liability, cost or expense, which may be sustained by Foeth on account of any such damage, death or injury.
10.7 If the Customer acts on behalf of one or more third parties then, notwithstanding the liability of those other parties, the Customer is liable to Foeth as though it were acting on its own behalf.
Article 11. Complaints
11.1 Foeth is not obliged to entertain complaints relating to the sale of the Equipment and cannot be held liable for them.
11.2 If a defect is detected, Foeth must be notified of complaints by registered letter within 10 (ten) days after delivery. 11.3 The submission of complaints does not in any event release the Customer from compliance with his obligations, including payment of the Contract Price. This applies both to this Contract and to previous or future Contracts.
Article 12. Guarantee
12.1 Only New Equipment is covered by a guarantee period of six months. During this period, in the event of defects occurring as a result of construction errors, Foeth will repair those defects or replace the defective parts according to its own choice, subject to the condition that the defect is reported within the stipulated period and the complaint is made as stipulated above.
12.2 Assembly costs related to repair or replacement of New Equipment shall be for the Customer’s account. 12.3 The guarantee for New Equipment shall be nullified with immediate effect in the event of the Customer failing to meet his obligations arising from the Contract or allowing third parties to work on the machines.
Article 13. Intellectual property
13.1 The Customer acknowledges that Foeth retains ownership of any intellectual property rights in any plans, Equipment Specifications, images, schedules, designs, sketches, drawings, films, software and other material or (electronic) files (the “Information”) made available in relation to the Contract and that the Customer shall have no rights of exploitation thereof, irrespective of the fact whether they have been handed over to the Customer or via the Customer to third parties and irrespective of whether the Customer charged Foeth for the production of such materials.
13.2 Unless the nature of the Information provided by Foeth to the Customer dictates otherwise, the Information shall be destined to be used by the Customer exclusively and shall not be copied or otherwise reproduced, publicly disclosed or disclosed to third parties by the Customer without Foeth’s prior written consent. Further, the Customer may not use any part of the techniques illustrated in such Information to improve its own Equipment. The Customer shall return the Information at Foeth’s first request.
13.3 The Customer will not attempt to seek or claim any interest in Foeth’s intellectual property rights or assist any Customer to assert any interest in Foeth’s intellectual property rights. The Customer acknowledges that any improvement or enhancement of Foeth’s intellectual property rights which may result from work performed by the Customer shall remain the exclusive property of Foeth and the Customer irrevocably assigns to Foeth all right, title and interest the Customer may have in any improvements or enhancements, to Foeth’s intellectual property rights. The Customer will not hinder Foeth in any application or other measure taken by Foeth to protect or exploit improvements to Foeth’s intellectual property rights.
13.4 All intellectual property rights regarding the website belong to Foeth or those from whom Foeth has obtained a license. This includes the rights with regard to the software, texts, images and sounds. Information is for personal use only. It is therefore not permitted to publish, duplicate and / or edit the information provided on the website without the consent of Foeth.
Article 14. Non-employment of Foeth’s personnel
14.1 Throughout the term of the Contract and for a period of 1 (one) year following the termination thereof, the Customer shall not in any way hire or employ in any other way, be it directly or indirectly, staff of Foeth, Foeth’s Affiliated Companies or of enterprises whom Foeth has engaged to execute the Contract and who are/were involved in the execution thereof, without prior proper businesslike consultation of Foeth on this matter, which consultation has to be recorded in writing, all in accordance with the requirements of reasonableness and fairness
Article 15. Force majeure
15.1 Foeth shall not be liable for any failure to fulfill any terms of the Contract to the extent that such fulfillment has been delayed, hindered, interfered with or prevented by any circumstance whatsoever which is not within its reasonable control and which amounts to an act of Force Majeure.
15.2 Foeth shall forthwith, but ultimately within 5 (five) days, inform the Customer of all the circumstances and particulars which prevent the Foeth from performing its obligations under the Contract. Foeth shall consult the Customer about the measures to be taken in order to limit the consequences of the situation of Force Majeure to a minimum and to safeguard the execution of the Contract.
15.3 Foeth shall exert its reasonable efforts to cure any event of Force Majeure to the extent that it is reasonably possible to do so and may at its option suspend performance of the obligation affected by the Force Majeure during the period such Force Majeure continues, without incurring any liability on account hereof.
15.4 If the Force Majeure continues for a period of more than 3 (three) consecutive months, then either Party shall be entitled to terminate the Contract by written notice to the other Party.
Article 16. Indemnity
16.1 Customer shall indemnify, hold harmless, and if so requested by Foeth, defend Foeth against all claims directly or indirectly arising out of or in connection with Equipment, its use or the Contract. The aforementioned claims refer to all losses, liabilities, damages, penalties, expenses (including legal fees and costs), claims, actions, and suits, whether in Contract or in tort, whether caused by Foeth’s negligence or otherwise, and whether based on a theory of strict liability of Foeth or otherwise, and includes, but is not limited to, matters regarding: (i) the selection, manufacture, purchase, acceptance, rejection, ownership, delivery, possession, maintenance, use, condition, return or operation of Equipment; (ii) TERMS AND CONDITIONS Page 6 any latent defects or other defects in any Equipment or software, whether or not discoverable by Foeth or by Customer; (iii) any patent, trademark or copyright infringement; and (iv) the condition of any Equipment arising or existing during Customer's use.
Article 17. Lapse of rights
17.1 Legal claims pursuant to the Contract or unlawful acts must be instituted by the Customer within 1 (one) year of the right to the claim coming into force, in the absence of which the legal claim shall lapse.
Article 18. Applicable law and disputes
18.1 These General Conditions are construed in accordance with and governed exclusively by the laws of the Netherlands. The applicability of the 1980 Vienna Sales Convention (“CISG”) is hereby excluded, as well as any other present or future terms of any international convention governing the purchase of moveable property, insofar as such terms can be excluded.
18.2 In case of any disputes arising out of or relating to these General Conditions, the Parties shall endeavor to settle such disputes amicably. If the Parties are unable to, the dispute shall be exclusively submitted to the jurisdiction of the competent courts of Rechtbank Gelderland, the Netherlands.