TERMS & CONDITIONS
1 GENERAL SALES, DELIVERY AND PAYMENT TERMS AND CONDITIONS OF FENTO KNEE PROTECTION
Art. 1 Applicability
1-All proposals are made upon applicability of these General Sales, Delivery and Payment Terms and Conditions, hereinafter referred to as the “General Terms and Conditions” and the latter will also apply to the proposal and the acceptance thereof as also to the concluded agreement.
2- All proposals will remain valid for a period of one month, unless the proposal indicates otherwise.
3- The agreement will be concluded as soon as the acceptance of the proposal has reached the seller; it will need to derive from this acceptance that the buyer agrees to applicability of these General Terms and Conditions and that the same, if necessary, waives applicability of its own General Purchase Terms and Conditions.
4- In the event the acceptance contains reservations or deviations from the proposal the agreement will, in deviation from the preceding paragraph, not be concluded until the seller communicated the buyer to agree to these deviations from the proposal.
Art. 2 Amendments
1- Amendments to the purchase agreements and deviations from these General Terms and Conditions will only come into full force and effect in the event they are agreed upon in writing by and between the buyer and the seller.
2- In the event amendments lead to an increase or decrease of the costs an amendment of the purchase price deriving there from will need to be agreed upon in writing by and between the parties.
3- Failing agreement with regard to amendment of the purchase price a dispute between the parties will be in place to which art. 17 of these General Terms and Conditions will apply.
Art. 3 Quality and description
1- The seller commits towards the buyer to deliver the goods in accordance with the description, quality and quantity as further described in the (possibly later amended) proposal.
2- The seller commits towards the buyer to deliver goods which: 1. a are manufactured of reliable materials and are of a sound quality;
2-b are, in all aspects, equal to possible samples or models rendered available or provided by the seller and/or the buyer;
3-c provide the performances (capacity, yield, speed, finishing and so forth) as described in the proposal.
2 3. 3- The seller will not guarantee that the goods are suitable for the purpose for which the buyer intends to designate the same, not even in the event this purpose is made known to the seller, unless otherwise agreed upon by and between the parties.
Art. 4 Packing and shipment 1.
1- The seller commits towards the buyer to properly pack the goods (unless the nature of the goods opposes the same) and secure the same in such manner that they will reach their destination, by means of normal transportation, in a good condition. The seller will take care of the usual transportation insurance.
2- The goods will be delivered by the seller at, or will be shipped for delivery at, the agreed location or locations in the manner as determined by means of the order or agreed upon afterwards.
3- If the seller, or a third party, has rendered, whether or not against fulfilment of a deposit or of caution money, pallets, crates, containers and so forth available for packing and transportation the buyer will be obliged (unless it involves a once-only packing) to return the pallets and so forth to the address indicated by the seller, failing which the buyer will forfeit a compensation of damages to the seller.
Art. 5 Storage 1.
1- In the event the buyer, for whatever reason, will not be able to accept the goods at the agreed time and these are ready for shipment, the seller will, if its storage possibilities allow the same, at the request of the buyer, keep the goods and secure the same and impose all reasonable measures to prevent deterioration with regard to quality until they are delivered to the buyer.
2- The buyer will be obliged to compensate the seller the storage expenses, in accordance with the common fee of the seller or, failing such, in accordance with the common industry fee, as of the moment the goods are ready for shipment or, in case this involves a later date, as of the delivery date agreed upon by means of the purchase agreement. Art. 6 Reservation of title and risk 1. 1- Without prejudice to the provisions contained in paragraphs 2 and 4 of this article the title and the risk of the goods will transfer to the buyer upon delivery. 2. 2- As long as the buyer does not fulfil the complete amount of the purchase price, as well as possible additional costs, or provides security for the same the seller will reserve the title of the goods. In that case the title will transfer to the buyer as soon as the buyer has complied with all its obligations towards the seller.
3- In case the seller has reasonable doubts about the payment capacity of the buyer, the seller will be authorised to postpone the 3 delivery of the goods by virtue of art. 4 paragraph 2 until the buyer provided security for the payment. The buyer will be liable for the damages incurred by the seller on account of this delayed delivery. 4.
4- If the seller, at the request of the buyer, postpones the delivery in accordance with art. 5 the goods will remain the exclusive property of the seller and will remain at the risk of the same until the goods are delivered to and received by the buyer at the location or locations intended by art. 4 paragraph 2.
Art. 7 Delivery time.
The seller will deliver the goods at the time or immediately following the end of the delivery period, respectively established by means of the order. In the event a delivery period is agreed upon, the same will commence on the date on which the seller has confirmed the order.
Art. 8 Force majeure
1- The delivery period intended by art. 7 will be extended by the period during which the seller, as a result of force majeure, will be prevented from fulfilling its obligations.
2- Force majeure on the part of the seller will be understood to exist in the event the seller, following conclusion of the purchase agreement, is prevented from fulfilling its obligations deriving from the agreement or the preparation thereof as a result of war, the threat of war, civil war, terrorism, riot, molestation, fire, water damages, flood, strike, company occupation, exclusion, import and export limitations, government measures, defective machinery, disruptions in the supply of energy, all at the company of the seller as well as at third parties from whom the seller needs to purchase, entirely or partially, the required materials or raw materials as well as during storage or transportation, whether or not under own management, and moreover all other causes falling outside the culpability or risk of the seller.
3- In the event, due to force majeure, the delivery is delayed by more than two months the seller as well as the buyer will be entitled to consider the agreement terminated. In that case the seller will only be entitled to compensation of already incurred costs.
4- In the event force majeure occurs whilst the agreement has partially already been carried out the seller will, in the event, due to the force majeure, the remaining delivery is delayed by more than two months, be entitled to either keep the already delivered part of the goods and fulfil the indebted purchase price in connection therewith or to consider the agreement terminated, also with regard to the already executed part under the obligation to send the already delivered goods back to the seller, at the expense and risk of the buyer, in the event the buyer can demonstrate that the already delivered part of the goods can no longer be used in an effective manner as a result of the non-delivery of the remaining goods.
Art. 9 Resale
1- In case of resale the buyer will not be authorised to export the goods, unless the written approval of the seller is obtained.
2- In case of resale the buyer commits to impose its buyer the obligation that the latter will not export the goods and will ensure that this kind of export prohibition will be imposed on all subsequent professional buyers.
3- In case of resale the buyer commits to lend its assistance to and to join sales promoting measures initiated by the seller of which the latter will always inform the buyer in a timely manner. These sales promoting measures can, among others, relate to advertisement, special offers, premiums and prize questions, enforcement of certain consumer prices, a certain type of “display” at the sales rooms of the buyer, exchange actions and so forth.
4- The buyer will not be authorised to place its own trademark on the packing of the goods unless the seller has agreed to the same in writing.
Art. 10 Warranty 1.
1- The seller will, towards the buyer as well as towards customers of the buyer, be liable for damages of and by the goods occurring during the warranty period mentioned in the order confirmation, unless these damages result from the fact that the buyer or a customer of the latter used the goods in violation of the thereto pertaining user instructions or otherwise made an error during use of the same.
2- The liability of the seller will be limited to, free of charge, repair of a defective good or replacement of such good or a component thereof, all at the discretion of the seller.
Art. 11 Price and payment
1- The purchase price includes, apart from the price for the goods, the costs of the packing, the transportation and delivery costs to the location in the Netherlands indicated by the buyer.
2. 2- The buyer will be obliged to pay the purchase price within 14 days, unless otherwise agreed upon in writing. The buyer will not be authorised to settle any amount, payable on account of any counterclaim, with this purchase price.
3. 3- In the event the buyer does not comply with its payment obligations in a timely manner and is neither pursuing a notice of default providing a period of one week, the seller will be entitled to consider the purchase agreement dissolved without judicial intervention. In that case the buyer will be liable for damages incurred by the seller, among others consisting of loss of profit, transportation costs and costs pertaining to the notice of default.
4. 4- In the event the seller, in case of default of the buyer, proceeds with the imposition of extrajudicial measures, the costs hereof will be borne by the buyer. These costs will amount to 15% of the invoiced amount, with a minimum of EUR 250.00. 5. 5- The buyer, making use of the storage possibility intended by art. 5, will remain obliged to pay the purchase price at the time mentioned in paragraph 2.
Art. 12 Statutory requirements
1- The seller guarantees that the design, the composition and the quality of the goods, which will need to be delivered by virtue of the order, will, in all aspects, comply with the applicable requirements on account of legislation and/or other official regulations applicable at the time the purchase agreement is concluded.
2- The provisions contained in paragraph 1 will equally apply to normal use of the goods.
Art. 13 Dissolution
1- Without prejudice to the provisions contained in art. 11 the purchase agreement will be dissolved without judicial intervention, following a written declaration, at the moment the buyer is declared bankrupt, filed for temporary suspension of payment or the Court sustains a request of the seller, natural person, to declare the debt refinancing regulation applicable or in case the buyer, as a result of an attachment, receivership or otherwise, loses control over its assets or parts thereof, unless the official receiver or administrator acknowledges the obligations deriving from the purchase agreement as a debt of the estate. 2- As a result of dissolution the claims existing back and forth will become immediately claimable. The buyer will be liable for damages incurred by the seller, among others consisting of loss of profit and transportation costs.
Art. 14 Compensation of damages and audit in case of resale
1- The buyer, acting in violation of any provision contained in art. 9, will forfeit an immediately claimable penalty payment to the seller for each and every transaction which falls under one of the prohibitions mentioned there. The scope of this penalty payment will, in advance, be set at EUR 10,000.00 per transaction, without prejudice to the right of the seller to claim additional compensation of damages.
2- The seller will be authorised to have an independent accountant perform an audit of the books of the seller in order to thus monitor compliance with the provisions contained in art. 9. Art. 15 Applicable law This agreement will be governed by Dutch law. 6 Art. 16 Applicability These General Terms and Conditions apply to all proposals and each and every acceptance on the part of the seller. Insofar the seller, in its proposal or acceptance, would refer to other General Terms and Conditions the applicability thereof is hereby explicitly excluded.
Art. 17 Disputes
1- All disputes which could occur between the parties, as a result of their agreement or further agreements originating there from or from any other existing or future legal relation such as, for example yet not limited to, tort, payment of undue amounts and unjust enrichment will be settled by the District Court in Amsterdam, such saving insofar imperative jurisdiction rules would prevent this choice.
2- A dispute will be considered on hand as soon as one of the parties declares the same.