GENERAL TERMS AND CONDITIONS FERUCOM B.V.
- These sales conditions apply to all current and future sales agreements with Ferucom B.V., with registered office at Stiens, Stienzer Hegedyk 29, and with company number 82548420 (hereinafter referred to as the ‘seller’), as well as to all quotations sent by the seller. Deviations from these terms and conditions are only valid if expressly agreed upon in writing.
- Irrespective of when they are communicated to the seller, any general or other terms and conditions of the customer shall only apply if they have been explicitly agreed in writing.
- Should any stipulation of these conditions be invalid or voidable, all other stipulations of these conditions shall remain fully in force and the seller and the customer shall discuss the matter in good faith to agree upon an alternative to replace the relevant stipulation, taking the purpose and aim of the stipulation into account as far as possible.
2. Quotations and orders
- The seller submits all quotations without any obligation unless explicitly stated otherwise in the quotation. The prices quoted are valid for at most 30 days from the date of the quotation in all cases. The seller cannot be held accountable for printing, material and/or calculation errors in a quotation.
- Insofar as this is not expressly stated otherwise in the quotation, an agreement shall only come into effect after the seller has accepted the order in writing.
- Products are only delivered in the countries for which the seller accepts the order. Anyone placing an order confirms their contractual capacity. The seller reserves the right to refuse orders in case of serious suspicion of abuse of rights or bad faith, serious suspicion of commercial purposes unacceptable to the seller or in case of exhaustion of the stock of a certain article. The seller and the customer expressly agree that electronic forms of communication are means by which a valid sales contract can be concluded.
- Cancelling an order shall only be possible if the seller agrees to this in advance. In the event of cancellation, the customer is always legally liable for a fixed payment of 30% of the order price without notice of default, and without prejudice to the seller’s right to claim damages in so far as they exceed the fixed amount.
- All images and photographs of products are purely indicative. The settings of a screen on which the customer visits a website or in which emails are opened may vary the colours of the products shown. The print reproduction of catalogues and related documents can also cause colour variations. The seller’s website is intended to provide the customer with general information about his products and activities. The seller only has a reasonable endeavours obligation with regard to access, the ordering process, delivery or other services. The seller cannot be held liable if for any reason the website is unavailable for a certain period of time and gives no guarantee that access to the website is uninterrupted, timely or error-free. Users may view and print the information on the website free of charge for personal use, but may not use it for commercial purposes. All dimensions, weights, amounts and other technical details, including illustrations in catalogues and folders, are always approximate. The seller shall always have the right to make changes to his products, if he considers that these products are improved as a result. Such changes shall not give the customer the right to dissolve or terminate the agreement or to insist that the same changes be made to products that have already been ordered and/or delivered.
- Unless expressly stated otherwise, all prices given in a quotation, order confirmation or agreement are “EXW 2020 Stiens”.
- Unless expressly stated otherwise, all prices given in a quotation, order confirmation or agreement are exclusive of VAT.
4. Delivery date
- The delivery of products shall, as far as possible, take place within the time specified in the individual order confirmation. Incorrect delivery addresses are the responsibility of the customer and may result in additional costs. The stated delivery times are not binding, but are given as an indication only. The seller has the right to make partial deliveries. The seller cannot be held responsible for all fees levied by a third party. Delivery is at the customer’s risk. The seller assumes no responsibility for late deliveries due to unforeseen circumstances caused by third parties nor for loss, theft or damage during shipment by third parties. No delay in delivery can lead to cancellation of the purchase or payment of damages for the benefit of the customer, except in case of deliberate delay.
- To the extent permitted by law, the seller is not liable for losses, costs, liability, damages, fines or expenses arising from a delay or failure to deliver.
5. Liability and force majeure
- If the seller is liable for any damage, this liability is always limited to a maximum of the invoice amount.
- The seller is never liable for:
- Deviations, damage, errors and defects that have gone unnoticed in goods approved by the customer, while the customer could reasonably have noticed them;
- Damage due to incorrect assembly or use by the customer or a third party;
- Indirect damage, including consequential damage, lost turnover or profit, missed savings, immaterial damage and damage through business stagnation;
- Damage through changes in environmental legislation after the agreement has been concluded;
- Unlawful, improper or unprofessional use by the customer or a third party;
- Damage through use in contravention of the user instructions;
- Damage resulting from advice given by the seller.
- Any claim for compensation for damage must be made, under penalty of forfeiture, within one year after the customer knew or could have known of the event causing the damage.
6. Force Majeure
- The seller shall not be liable for any delay in the performance or for any non-performance of his obligations due to events beyond his normal control, including but not limited to natural disasters, actions of third parties (such as hackers, suppliers, authorities, quasi-authorities, supranational or local authorities), riots, disturbances, civil unrest, war, hostilities, disasters, terrorism, piracy, arrests, coercive measures of a competent authority, strikes and/or lock-outs, epidemic, fire, explosion, storm, flood, drought, weather conditions, earthquake, accident, mechanical defect, software of third parties, disruptions or problems with public utilities, production interruptions, difficulties in supply or shortages of raw materials, manpower, energy or transport or delays in transport, work stoppages or other collective employment disputes, that affect the seller or his suppliers, disruptions to the Internet, electricity supply, postal services or technology provided by third parties, governmental measures and sickness, even if these events were foreseeable. This list is not exhaustive. In the event of force majeure on the part of the seller, the seller’s obligations towards the customer will be suspended for as long as the force majeure lasts.
- If a force majeure situation has lasted longer than ninety days, both parties shall be entitled to cancel the order without the prior consent of the other party. In such cases, the customer cannot claim damages from the seller. If applicable, whatever has already been provided or performed by the seller under the agreement shall be settled proportionately.
7. Transport and acceptance of the goods
- Deliveries by the seller are always “EXW 2020 Stiens” where the customer is responsible for all costs and risks associated with packaging, loading, transport from the seller’s warehouses or workshops to the required destination. The goods will never be insured by the seller.
- If the customer chooses to take responsibility for transport, the customer also accepts all liability and risk associated with the transport, starting from the moment that loading of the products begins.
- The risk associated with the goods passes to the customer from the moment the goods are meant to be accepted, even if the customer has failed to do so.
- If the ordered goods have not been collected by the customer on the date of delivery, from that moment on the seller has the right without any notice of default being required to charge the customer for storage costs against a fixed tariff of 50 EUR/m² per (started) week.
8. Intellectual property
- All intellectual property rights and derived rights are retained by the seller. These intellectual property rights include: copyrights, trademarks, designs and models rights and/or other (intellectual property) rights, including technical and/or commercial know-how, methods and concepts, whether or not patentable. The customer is prohibited from using and/or modifying the intellectual property rights as described in this article of the general terms and conditions of the seller. The contents, images, logos, drawings, photographs, data, product names, texts, etc. on the website or in catalogues and other printed matter of the seller are protected by copyright and other (intellectual) property rights and treaty provisions.
- All informational material provided by the seller may not be copied, sold on, made public or brought to the attention of third parties in any way, unless the nature of the information provided otherwise allows.
- The customer is not allowed to remove the (image) trademark of the seller (“Ferucom”) or of a third party on the delivered goods.
9. Processing of personal data and privacy
- When products are purchased, the customer explicitly agrees that his/her personal data may be used for administrative purposes, such as creating and maintaining a customer database, tracking orders, shipments and invoices, and checking solvency. By personal data, the seller means all information with which the person of the customer can be identified.
- The information provided by the customer is necessary for the processing and completion of orders and invoicing. By placing an order for a product, the customer data is transferred to the customer database of the seller.
- The seller will never pass on this personal information to third parties, unless this is explicitly requested by judicial authorities or when he is legally obliged to do so. The customer has the right to object free of charge to the processing of his/her personal data for direct marketing initiatives. Only customers who have given their explicit consent will be included in the seller’s newsletter. A customer can unsubscribe by means of a simple request. The customer has the right to access, modify or remove his or her personal information.
10. Complaints and guarantee
- The customer must inspect the goods immediately upon delivery. The customer must inform the seller in writing of any complaints, under penalty of forfeiture, within 8 days of delivery. The complaint must contain a detailed summary of the defects. The use of a delivered good or parts thereof is irrefutably considered as acceptance of the delivered goods.
- Complaints in connection with hidden defects that could not reasonably have been discovered upon delivery must be communicated to the seller in writing within 8 days of discovery, under penalty of forfeiture of rights.
- If the seller has been informed about a defect in time and in accordance with this article, the seller has the right to replace the goods in question entirely or partially. If the seller decides to replace the goods in question entirely or partially, he shall be responsible for collecting the relevant goods at his own expense.
- If there is a visible or hidden defect that was brought to the seller’s attention in good time and in accordance with this article and the seller decides to replace the goods in accordance with the above-mentioned paragraph, the seller shall not be liable for any other compensation. In addition, the compensation payable by the seller in the event of a proven contractual fault is always limited to a maximum of the price of the goods concerned, excluding VAT. Under no circumstances shall the seller be liable to pay compensation for indirect or immaterial damages (including, but not limited to, loss of profit, missed opportunities, other consequential damage, etc.).
- For new machines sold by the seller (and thus not for second-hand machines), the seller guarantees the proper operation of the machine for a period of 12 months from delivery. The guarantee does not apply to defects caused by accidents, neglect, falls, abnormal or incorrect use, use of the article contrary to its intended purpose, non-compliance with the instructions for use, maintenance instructions as stated in the maintenance booklet or manual, adaptations or modifications to the article, heavy-handed use or poor maintenance. Nor does it apply to articles with a shorter service life, consumable articles, or products with a limited shelf life. Defects that manifest themselves after a period of 6 months following the date of delivery are deemed not to be hidden defects, unless the customer provides evidence to the contrary. The guarantee is not transferable. The guarantee also does not apply to materials whose brand has been changed or removed or to which non-original parts have been fitted. In the event the guarantee is applicable, the seller shall repair the identified defect at his own expense. In such cases the seller cannot be held liable for any other compensation and the carrying out of any repairs shall not result in the guarantee period being extended.
- The seller shall not be obliged to provide indemnification for hidden or visible defects if the customer has not properly met his obligations regarding payment of the amount owed to the seller.
- To invoke the guarantee, the customer must, on penalty of forfeiture, report any defect observed to the seller in writing within eight days of its discovery and within the guarantee period.
- The guarantee shall lapse immediately and by operation of law if the customer, without the seller’s prior consent, calls upon third parties to carry out repairs to an item delivered by the seller.
11. Retention of title
- The goods delivered by the seller shall always remain his property until the principal sum plus any costs and interest charges have been paid in full by the customer, even if the goods are no longer movable due to their installation or utilisation. The seller can therefore take the goods back at any time until the goods delivered have been paid for in full.
- The customer also undertakes to neither use the goods nor to pledge them or use them as collateral security until they have been fully paid for.
- The retention of title also applies in the event of bankruptcy of the customer, provided that the goods are with the customer in kind at the time of bankruptcy and have not become immovable through incorporation.
- Should the seller wish to exercise his property rights, the customer will as of that moment give the seller his unconditional and irrevocable consent to enter all the places where the property of the seller is located and to retrieve the items.
- All invoices must be paid within thirty days of the invoice date, unless explicitly stipulated otherwise on the invoice itself. Complaints, even if justified, do not suspend the customer’s payment obligation. All costs concerned with making payments shall be borne by the customer. Any invoice from the seller must, in case of dispute, under penalty of forfeiture, be challenged by the customer within eight days of its receipt.
- The seller always has the right to set off any debts he may owe to the customer against the debts the customer owes the seller in the case in question.
- If payment is not made on time, the customer shall owe interest of 8% per annum by operation of law and without notice of default. In addition, in the event of non-payment on the due date of the invoice by the customer, a fixed compensation of 12% of the total invoice amount (including VAT) shall be due by operation of law and without notice of default, without prejudice to the seller’s right to prove higher damages and to claim compensation for them.
- Non-timely payment of a single invoice shall cause all outstanding amounts owed to the seller by the same customer on other invoices to become payable in full by law with immediate effect and without notification of default, even if the payment period has not been exceeded.
- In accordance with Article 11, if an invoice has not been paid by its due date, the seller has the right by law to take the delivered goods back immediately without notification of default.
- Drawing up and/or accepting bills of exchange or other negotiable securities shall not comprise novation and shall not adversely affect the applicability of these conditions.
- If the customer does not meet any of his essential obligations, such as the timely payment of the seller’s invoices or timely acceptance of the goods, and in the event of bankruptcy, suspension of payment, seizure and (other) situations in which the sellers can reasonably expect that the customer will not (be able to) meet his obligations, the seller has the right to dissolve the contract without prior notice of default. In the event of such dissolution of the agreement , the customer is obliged to return the goods already delivered by the seller at the seller’s first request immediately and at his own expense. Moreover, the customer is also obliged in such a case to compensate the seller for depreciation of the delivered goods. The amount for this shall be determined by mutual consent or, in the absence thereof, by an expert appointed by the seller.
13. Deposit and repairs
- The seller is only liable for damage to, or disappearance of, goods deposited by the customer for the purpose of drawing up specifications or carrying out maintenance or repairs if gross negligence can be proved on the seller’s part.
- The customer shall be held responsible at all times for any damage caused by defective goods deposited with the seller by the customer as well as for any damages suffered by the seller resulting from a claim submitted by a third party in connection with goods deposited with the seller by the customer.
- If the customer has deposited goods with the seller with a view to carrying out certain activities, the seller shall not be obliged to check any parts other than those relating to the instructions given to the seller. Nor is the seller obliged to inform the customer about any shortcomings in goods deposited with the seller for maintenance or repairs.
14. Guarantees to be provided by the customer
- If the seller’s confidence in the customer’s creditworthiness is impacted by court actions taken against the customer and/or other demonstrable events that affect or could affect the seller’s confidence in the customer’s ability to meet his contractual obligations, the seller has the right to demand an appropriate guarantee from the customer. If the customer refuses to provide an appropriate guarantee, the seller has the right to cancel the order in full or in part, even if the goods have already been shipped in full or in part. In such cases the customer shall be liable by operation of law and without notice of default to pay a fixed compensation of 10% of the order price, without prejudice to the seller’s right to prove that the damage was greater and claim compensation for this.
15. Applicable law and disputes
- The legal relationship between the seller and the customer is exclusively governed by Dutch law, to the exclusion of the Vienna Sales Convention.
- Any disputes can be submitted solely to the competent court in Leeuwarden.