ALLGEMEINE VERKAUFS-, LIEFER- UND ZAHLUNGSBEDINGUNGEN VON FENTO KNEE PROTECTION
1.1 ‘Article’ means an article in these general terms and conditions.
1.2 ‘Customer’: means the natural person and/or legal entity, acting in the performance of a profession or business to which FKP directs its offers, to which FKP delivers or sells Products, and its representative(s), authorised party/parties, legal successors and/or heirs.
1.3 ‘FKP’: means Fento Knee Protection B.V., having its registered office at (1066 JS) Amsterdam, Johan Huizingalaan 400, Cham. of Comm. no.: 69079943.
1.4 ‘Contract’: means the contract concluded between FKP and the Customer relating to the sale or delivery of Products.
1.5 ‘Force Majeure’: means any extraneous cause, or any circumstance, which is reasonably not for the risk of FKP. Force Majeure situations are explicitly delays, negligence in conjunction with a breach of contract on the part of third parties engaged by FKP, as well as auxiliary staff, Internet, electricity and email traffic failures, and failures in, or changes to, technology delivered by third parties, traffic-related difficulties, strikes, pandemics, government measures, supply delays, staff illness and defects in resources or means of transport.
1.6 ‘Defect(s)’: means that a Product has defects in design, materials and workmanship.
1.7 ‘Product(s)’: means all goods sold to the Customer by FKP pursuant to a Contract.
2.1 These general terms and conditions apply to all proposals, offers, legal relationships and contracts which relate to the sale and/or delivery of Products and/services by FKP. By placing an order with FKP, the Customer unconditionally agrees to the application of these general terms and conditions.
2.2 The general terms and conditions also apply to other contracts, including subsequent and supplementary agreements to which FKP and the Customer, or its legal successor(s), are party.
2.3 Any different and/or supplementary (verbal) arrangements and/or commitments made subsequently by, or on behalf of, FKP are only binding if they have been agreed explicitly in writing.
2.4 If any provision in these general terms and conditions is invalid or null and void, the other provisions of these general terms and conditions will continue to apply undiminished and in full.
2.5 If the Customer consists of one or more legal entities/natural persons, each of these legal entities/natural persons will be jointly and severally bound vis-à-vis FKP for the obligations resulting from the Contract.
2.6 FKP is entitled to amend and/or supplement these general terms and conditions.
2.7 Without written permission from FKP, the Customer is not entitled to transfer any right or any obligation on account of the Contract to third parties.
2.8 The Dutch text of these general terms and conditions takes precedence over any translation thereof.
2.9 The applicability of any (purchase) conditions used by the Customer is hereby explicitly rejected.
2.10 Wherever these general terms and conditions refer to ‘in writing’, this also means electronic communication such as email, provided the identity of the Customer and FKP, as well as the authenticity of the communication, can be sufficiently established.
3. OFFERS AND PROPOSALS
3.1 Unless FKP explicitly stipulates otherwise in writing, all offers and quotations issued by FKP will be non-binding. A written offer and/or proposal is valid for the period referred to therein, in the absence of which they will be valid for a period of fourteen (14) days.
3.2 Offers and/or proposals by FKP do not apply automatically to repeat orders.
3.3 All illustrations, specifications, information about weight, dimensions and colour, and other details in offers and/or proposals by FKP are exclusively indications and cannot provide any grounds for an obligation to compensate on the part of FKP, or dissolution or termination of the Contract by the Customer.
3.4 FKP reserves the right to rectify (typing) errors in offers and/or proposals. No liability is accepted for the consequences of (typing) errors. FKP cannot be held to its offer if the offer and/or proposal, or a part thereof, contains a (typing) error.
3.5 If the Customer’s acceptance deviates from the offer and/or proposal, this will be regarded as a new offer by the Customer and a rejection of the entire offer by FKP, even if the deviation relates only to minor points.
3.6 Third parties cannot derive any rights from information in FKP’s offers, proposals, product brochures, drawings and/or price lists.
4. FORMATION OF THE CONTRACT
4.1 The Contract is formed by a written order confirmation by FKP, or because FKP has started delivering the Products.
4.2 FKP is entitled to revoke its offer and/or proposal within two (2) working days after the order confirmation. In such event, no Contract has been formed.
4.3 Any Contract is concluded subject to the suspensive condition of sufficient availability of the Products concerned.
4.4 FKP is entitled to execute the Contract in various phases and to deliver the Products by means of partial deliveries to the Customer. In such case, FKP shall be entitled to invoice these partial deliveries separately.
4.5 Insofar as the Customer takes any action or makes preparations to do so in the apparent expectation that a Contract will be formed, or based on the apparent assumption that a Contract has been formed, the Customer will do so for its own account and risk.
5.1 All prices of the Products are in Euros and exclude VAT. All prices exclude taxes, levies and transport costs which are to be charged to the Customer separately.
5.2 The prices agreed by FKP with the Customer can be increased after concluding the Contract, if FKP is confronted by its sub-supplier with a price increase in relation to the execution of its obligations under the Contract, or if other price-increasing circumstances have occurred. If the price increase exceeds 15% of the invoice amount for the more expensive Products, the Customer will be entitled to cancel the Contract in writing and free of charge within two (2) working days after receiving notification of the price increase, but only as regards the Products to which the price increase pertains. The Customer cannot claim compensation of loss or damage as a result of such (cancellation as a result of) price increases, and FKP will only be obliged to refund the amount already paid by the Customer in relation to the part of the Contract affected by the cancellation.
6. DELIVERY AND DELIVERY PERIOD
6.1 Unless agreed otherwise, the Products will be delivered pursuant to Incoterms® EX Works 2020 with the delivery destination being the FKP warehouse at the address Schoterhoek 2 in Nieuwveen (NLD). To that end, Incoterms® Ex Works 2020 is declared applicable mutatis mutandis insofar as this does not lead to a deviation from the provisions of the Contract or these general terms and conditions.
6.2 FKP and the Customer can agree that FKP will arrange transport of the Products. The risk of loss or damage with regard to the Products will be fully vested in the Customer as from the moment that the Products are made available by FKP to the haulier designated by FKP or the Customer. The Customer can take out insurance to cover these risks. If FKP arranges transport of the Products, the method of packing and transport will be determined exclusively by FKP, unless agreed otherwise in writing.
6.3 An agreed delivery period is a target period, unless agreed otherwise in writing.
6.4 With regard to delivering the Products, FKP will only be in default if it also fails to deliver within a reasonable new delivery period which the Customer sets after the original delivery period. The reasonable additional period will be at least three (3) calendar months. If FKP has still not delivered within the reasonable additional period, the Customer will be entitled to cancel the Contract in writing free of charge, but only with regard to part thereof which cannot be delivered within the reasonable additional period. The Customer cannot claim compensation of loss or damage as a result of such (cancellation as a result of) failure to delivery, and FKP will only be obliged to refund the amount already paid by the Customer in relation to the part of the Contract affected by the cancellation. The Customer will not have the aforementioned right to cancellation free of charge if it has remained in default.
6.5 In the event of Force Majeure, as well as if an action or omission, whether culpable or otherwise, by the Customer or a third party causes a delay, the delivery period will be extended by the duration of that delay.
7.1 FKP is entitled to invoice immediately after the Products have been delivered in accordance with Article 6. The Customer is required to pay pursuant to the payment terms and conditions agreed between the Parties. If no explicit payment term is agreed by the Parties, a payment term of fourteen (14) days after the invoice date will apply. This deadline is a firm deadline.
7.2 If the Customer does not pay, or does not pay on time, FKP will be authorised to suspend its obligations under the Contract, and the Customer shall, as from the final day on which payment to FKP should have taken place until the day of full payment of the outstanding amount, pay an interest of 5% of the unpaid invoice amount per month, whereby a month that has already started will be counted as a full month. If the Customer continues to fail to pay the amount due, FKP can pass on the claim, in which case the Customer will not only be obliged to pay the then due amount and interest, but also all (actual and full) extrajudicial and judicial (collection) costs, with a (fixed) minimum applying of 15% of the invoice amount in question.
7.3 In the event of payment by bank transfer, the time of payment will be the date on which the amount is credited to FKP’s account.
7.4 Payments will always be set off against payable costs and interest (in that order) and then against the principal sums, with older amounts taking precedence over new amounts.
7.5 The Customer is not permitted to invoke a right of suspension and/or retention, nor to apply any discount or set-off. The Customer irrevocably and unconditionally relinquishes this right.
7.6 In the context of an Contract with the Customer, FKP is entitled to demand partial or full advance payment of the invoice amount.
7.7 If, in the reasonable opinion of FKP, the Customer’s financial position gives cause to do so, the Customer will be obliged, at the first request of FKP, to issue immediately to FKP a bank guarantee and/or letter of credit which covers the payable amount as security for the fulfilment of its payment obligations vis-à-vis FKP. If the Customer fails to comply, this will be an attributable non-fulfilment vis-à-vis FKP and the latter will be entitled to terminate or dissolve the Contract. This provision also applies if credit is stipulated.
7.8 Complaints about invoices must be submitted to FKP within three (3) working days after the invoice date, with failure to do so resulting in the invoice being regarded as approved.
8. TERMINATION OF THE CONTRACT
8.1 In the event that the Customer is in default with regard to any obligation on account of the Contract or these general terms and conditions, or if the Customer submits (a petition in) bankruptcy, or is subject to a suspension of payments, a debt rescheduling arrangement, a (company) takeover and/or a merger, or death, FKP will be entitled to terminate or dissolve the Contract in writing. FKP will then be entitled to payment of the entire invoice amount, less the (direct) costs it saves by the termination. The Customer cannot then claim compensation for damage.
9. RETENTION OF TITLE
9.1 The Products will continue to be owned by FKP until all amounts payable by the Customer to FKP on account of the Contract (explicitly including all amounts due to any failures in its payment obligations), or any other agreement between FKP and the Customer, have been fully paid to FKP. As long as the ownership of the Products has not transferred to the Customer, the latter may not pledge the Products, transfer them in ownership, or grant any other right thereto to third parties, barring the provisions of Article 9.2.
9.2 The Customer is permitted to sell and deliver to third parties the Products delivered under retention of title within the framework of performing its normal business.
9.3 The Customer is obliged to keep the Products delivered under retention of title with due care and separately as the recognisable property of FKP, and to impose the aforementioned obligation on third parties to which it has sold the Products delivered under retention of title.
9.4 If the Customer fails to fulfil the provisions of Article 9.3, it will be presumed that the goods present of the same type as the Products belong to FKP.
9.5 If third parties wish to exercise any right to the Products delivered under retention of title, for example via an attachment or in the event of a suspension of payments or bankruptcy, the Customer will be obliged to inform FKP to this effect immediately.
9.6 The Customer is obliged to insure the Products delivered for the term of the retained right of ownership against loss or damage, fire, and the risk of explosion, as well as against theft, and the insurance policy will be made available for inspection at the first request of FKP.
9.7 The Customer is obliged, at the first request of FKP and at its discretion, to:
a) pledge or cede in advance to FKP all the Customer’s entitlements or claims against insurers with regard to the Products delivered under retention of title, such at the discretion of FKP, and;
b) pledge or cede to FKP the claims which the Customer acquires vis-à-vis its customers on account of the sale of Products delivered by FKP under retention of title.
9.8 In the event of default by the Customer in relation to any (payment) obligation on account of the Contract, or any other agreement between FKP and the Customer, or when, in the opinion of FKP, there is a legitimate fear that the Customer will not fulfil those obligations, FKP will be entitled to recover or have recovered the Products delivered without further announcement to the Customer, or third parties that are holding the Products for the Customer. The Customer is obliged to cooperate fully under pain of an immediately due and payable penalty of 10% of the amount payable by the Customer to FKP at that point in time, for each day that its refusal to cooperate continues.
9.9 The Customer authorises FKP, or grants FKP permission in advance, to access its sites and buildings in order to exercise its retention of title.
9.10 After recovering the Products on the grounds of Article 9.8, the original invoice amount relating to the Products will be credited to the Customer, after settlement of all that which FKP can claim from the Customer on any account (including the costs incurred by FKP on behalf of the performance of its retention of title.
10.1 Subject to these terms and conditions, FKP guarantees that, as from the date of delivery to the Customer in accordance with Article 6, the Products will be free of Defects for a period of twenty-four (24) months.
10.2 FKP’s warranty obligation is limited, at FKP’s discretion, to repairing or replacing the Product (or having it repaired or replaced), or the part thereof that contains a Defect. In the event that FKP does not have the Defective (part of the) Product in stock, FKP will be entitled to deliver a product, or part thereof, with comparable specifications.
10.3 FKP is at all times entitled, but not obliged, to replace its warranty obligation as referred to in Article 10.2 by payment of a financial compensation to the Customer, on the understanding that the amount thereof will always be limited to an amount equal to the invoice amount that the Customer paid with regard to the (part of the) Product that contains the Defect.
10.4 FKP’s obligations under these warranty conditions are limited to its obligation(s) as described in Articles 10.2 and 10.3.
10.5 The Customer shall not be entitled to any claim under warranty as referred to in Article 10, or otherwise, if:
a. the Customer is in default in connection with any of its obligations under a Contract and/or the guarantee;
b. the alleged Defect is (partially) the consequence of regulations imposed by the government;
c. the alleged Defect is the consequence of normal wear and tear;
d. the Product has been exposed to unusual circumstances including, but not limited to, a higher (ambient) temperature than 50 degrees Celsius (50 °C).
e. the Product has been repaired or otherwise modified by the Customer or any third party, without prior written permission from FKP;
f. the Product is used contrary to the instructions and/or regulations as issued by FKP or the manufacturer of the Product, or contrary to any safety standards which usually apply to the Product.
10.6 If an alleged Defect occurs during the warranty period referred to in Article 10.1, the Customer must inform FKP to that effect in writing immediately, but by no later than within seven (7) days after the Customer has discovered, or reasonably could have discovered, the alleged Defect. The notification to FKP will describe (the nature of) the alleged Defect and will always be accompanied by photos of the Product concerned.
10.7 By failing to (timely or completely) notify FKP in accordance with Article 10.6, the Customer will forfeit the right to claim under the warranty as referred to in Article 10.
10.8 The Customer shall at first request provide FKP with any information or documents which FKP deems necessary or desirable, or with regard to which the Customer reasonably ought to understand to be necessary or desirable, for the execution of its warranty obligations, including but not limited to the establishment and assessment of any right or claims on the part of the Customer under warranty.
10.9 FKP shall be entitled to conduct an investigation, or have one conducted, regarding (the cause of) an alleged Defect and/or the Customer’s entitlement to any claim under warranty in accordance with Article 10. The Customer fully cooperate with such an investigation by FKP, or any third party designated by FKP, and will do everything that may be expected from it in that regard.
10.10 At the first request of FKP, the Customer must return to FKP for investigation purposes the Product with regard to which an alleged Defect has arisen.
10.11 FKP is entitled to suspend the execution of its obligations under article 10 if the Customer does not fulfil (one of) its obligations pursuant to this Article 10 (on time).
11.1 The liability of FKP – and of its (authorised) representatives and employees – is always limited to the amount paid out in the instance in question under FKP’s applicable (business) liability insurance. The amount insured by FKP in relation to damages is currently EUR 2.500.000,= (in words: two and a half million euros) per claim in respect of deliveries within the European Union and the United States, with a maximum of EUR 5.000.000,= (in words: five million euros) per year. If, for whatever reason, no payment is made pursuant to the above-mentioned insurance, any liability on the part of FKP will always be limited to the amount that the Customer has paid FKP in relation to the Contract, or the part thereof in relation to which the liability arose, up to a maximum of EUR 2.000,= (in words: two thousand euros).
11.2 FKP is never liable for indirect loss or damage, including but not limited to consequential loss or damage (to people or goods), trading loss, lost profit or income, missed savings and or damage due to business stagnation.
11.3 FKP is not liable for loss or damage, of whatever nature, as a consequence of actions or omissions of, by or on behalf of third parties engaged by FKP and/or by materials used by said third parties.
11.4 FKP is not liable for loss or damage, of whatever nature, as a consequence of incorrect and/or incomplete information provided by the Customer, or by people or goods made available by the Customer.
11.5 In all instances in which FKP can invoke the provisions of Article 11, any employee(s) called to account will also be able to invoke the same provisions as if the provisions of Article 11 had been stipulated by the employee(s) in question.
11.6 The restriction or exclusion of liability stipulated in Article 11 does not apply insofar as the loss or damage is the consequence of intent or gross negligence on the part of FKP.
12.1 The Customer indemnifies and holds harmless FKP against all possible claims by third parties in connection with the execution of the Contract, more particularly claims by third parties in relation to Products delivered by FKP to the Customer, as a result of which said third-party might have suffered loss or damage, irrespective of the cause or time at which it occurred.
12.2 The Customer is obliged to support FKP – at the Customer’s expense – both judicially and extra judicially if FKP is called to account by a third party as referred to in Article 12.1, and immediately to do all that which might be expected of the Customer in that instance. If the Customer fails to take adequate measures, FKP will be entitled to take such measures itself without any notice of default being required. All costs which arise as a consequence thereof for FKP will be entirely for the Customer’s account.
12.3 The Customer is obliged to take out sufficient business liability insurance on time, of which the insurance policy document will be made available for inspection at the first request of FKP.
13. FORCE MAJEURE
13.1 In the event of Force Majeure, FKP is authorised to suspend fulfilment of its obligations on account of the Contract, or a portion thereof, and the Customer will not be able to claim fulfilment or compensation.
13.2 If, when the force majeure starts, FKP has partially fulfilled its obligations on account of the Contract, or can only partially fulfil its obligations, it will be entitled to invoice that (portion) already delivered separately (in between times) and the Customer will be obliged to pay the respective invoice.
14. INTELLECTUAL PROPERTY AND CONFIDENTIALITY
14.1 FKP retains all absolute intellectual rights (including copyright, patent rights, trademark rights, drawing and model rights, etc.) with regard to all its Products, works, designs, drawings, writings, data carriers or other information, proposals, images, sketches and models, unless agreed otherwise in writing.
14.2 Without the explicit written permission of FKP, the works referred to in Article 14.1 may not be copied, shown or made available to third parties, or used in any other way than the way agreed with FKP.
14.3 During the term of the Contract, as well as after the Contract has ended for whatever reason, the Customer is obliged to observe confidentiality with regard to all data received from FKP within the framework of the Contract which it can assume is confidential in nature, unless prior written permission has been obtained from FKP.
14.4 If FKP is obliged pursuant to the law or a court decision to issue data on the Customer to the government or to bodies designated by the government, FKP will be entitled to proceed to issue said data.
15. PERIODS OF LIMITATION
15.1 Contrary to the statutory periods of limitation, the periods of limitation of all claims of the Customer vis-à-vis FKP will be twelve (12) months from the moment that such claims arise.
16. APPLICABLE LAW AND DISPUTES
16.1 Each Contract, including these general terms and conditions, shall be solely governed by and construed in accordance with the laws of the Netherlands, with the explicit exclusion of the United Nations Convention on Contracts for the International Sale of Goods (CISG).
16.2 Unless otherwise agreed in writing, all disputes arising out of or in connection with a Contract concluded between FKP and the Customer, shall be referred to and finally resolved by arbitration in accordance with the Arbitration Rules of the Netherlands Arbitration Institute (Nederlands Arbitrage Instituut), which rules are deemed to be incorporated by reference into this Article 16. The number of arbitrators shall be one (1). The seat, or legal place, of arbitration shall be Rotterdam, the Netherlands. The language to be used in the arbitral proceedings shall be English. The substantive law of the arbitration proceedings shall be the laws of the Netherlands.