STANDARD TERMS AND CONDITIONS OF SALE OF LANGENBERG-FASSIN B.V., ROYAL FASSIN B.V., FASSIN SALES B.V. AND ANY OTHER SUBSIDIAIRIES OR AFFILIATES OF THESE COMPANIES,
filed with the Chamber of Commerce for Centraal Gelderland on 1 May 2014.
These general terms and conditions contain the conditions on the basis of which Langenberg-Fassin B.V., Royal Fassin B.V., Fassin Sales B.V. and any other subsidiary or affiliate of these companies (hereinafter referred to as ”Fassin”), agree to the sale and delivery of goods to their buyers (“the Buyer”). These Conditions apply therefore to all agreements with and offers by or on behalf of Fassin and should be read together with the important trade conditions that the parties agreed upon, such as, without limitation, the description of the goods, the place and terms of delivery, all applicable Incoterms, the price, currency, payment conditions and any special terms and conditions. Any general terms and conditions proposed by the Buyer are rejected explicitly.
2. Offers and order acceptance
Any order placed by the Buyer is considered to be a request from the Buyer and shall only be binding upon Fassin if Fassin sends the Buyer a written (which also includes electronical) order confirmation. Any offers of Fassin are without obligation, unless explicitly dictated otherwise by Fassin.
3.1 Complaints about the goods delivered must be submitted to Fassin in writing within fourteen days after receipt of the goods and Fassin must be given a reasonable chance to subsequently inspect the goods. Fassin does not accept any liability if the written notification of the Buyer is not submitted within the mentioned period. Complaints or objections submitted do not suspend the Buyer’s payment obligation.
3.2 Fassin shall not be liable if: (i) the Buyer continues to use the goods after a notification has been sent on the basis of Article 3.1; or (ii) any defect is the result of the fact that the Buyer violated Article 8 or (iii) the Buyer repackaged the goods delivered by Fassin.
4. Prices and Payment guarantee
Unless otherwise agreed in writing, the prices are exclusive of VAT or the equivalent local taxes, which the Buyer has to pay to Fassin by virtue of the law that prevails from time to time against receipt of an applicable invoice. Prior to the delivery, Fassin may demand advance payment or a payment guarantee in a form determined by Fassin. In that regard Fassin is entitled to submit the Buyer to a credit check and the Buyer has to cooperate as reasonably may be required. Fassin is under no obligation to make any delivery if no security, advance payment or payment guarantee has been put up or made by the Buyer.
5.1 Fassin’s delivery times can never be considered deadlines, unless explicitly agreed otherwise in writing.
5.2 Deliveries shall be made ex works ’s-Heerenberg (Netherlands), unless otherwise agreed in the contract.
5.3 Each delivery of goods is a separate contract and any failures by Fassin do not give the Buyer the right to terminate the contract or any distribution agreement in place.
5.4 Fassin is permitted to deliver more or fewer goods than the quantity agreed upon, provided that this does not deviate more than 10% from the indicated.
6. Title and Risk
6.1 From the time delivery is made as referred to in Article 5.2, the Buyer shall bear the risk for the goods he has purchased.
6.2 Fassin shall continue to be the legal and beneficial owner of all goods delivered by Fassin, which are only kept by the Buyer on behalf of Fassin until the Buyer has paid to Fassin all the outstanding invoices, plus interests and costs, if any.
6.3 For the purpose of recovery of the goods, the Buyer authorises Fassin to enter any building where the goods are (or reasonably might be) in order to repossess the goods and the Buyer shall pay all costs of this repossession.
6.4 Fassin shall own and continue to own all intellectual property rights with regard to the goods, their production, development or creation (including improvements) (regardless of whether the goods were ordered by the Buyer).
7.1 Unless otherwise agreed in writing, payment must have been received in full within the term specified on the invoice and in the currency specified in the contract.
7.2 The Buyer is not entitled to suspend payment or to deduct or offset any amount from the invoice by way of compensation for any reason whatsoever.
7.3 Complaints or objections about the invoices of Fassin must be submitted to Fassin in writing within fourteen days after receipt of the invoice. Complaints or objections submitted do not suspend the Buyer’s payment obligation.
7.4 In case of any failure to pay in time, the Buyer shall be liable – without any notification of default being required – to pay Fassin the Dutch statutory commercial interest in force on the invoice date as well as all costs connected with judicial and extrajudicial collection, with a minimum of € 350.00 for each invoice.
8. Proper care duty
8.1 The Buyer shall; at all times handle the delivered goods in a reasonable way in conformance with the verbal or written instructions for storage, use or maintenance of the goods; shall not perform any acts that may adversely affect the quality of the goods or the reputation of Fassin’s brands; and shall take all reasonable steps in the event of resale of the goods to ensure that the second buyer shall comply with these conditions.
8.2 If the Buyer uses or sells the goods in a country other than an EU member state, the Buyer must inform Fassin in writing, prior to the production and the delivery of the goods by Fassin, of all local laws or regulations that Fassin should observe in the sale and delivery of the goods (with the exception of the laws or regulations of the European Union).
9.1 Fassin shall never be liable for any damage suffered by a Buyer or third party in connection with the delivered goods, unless the damage directly results from gross negligence or intention on the part of Fassin or third parties called in by Fassin.
9.2 Fassin’s total liability for each claim shall be limited to an amount equal to two times the invoiced amount for the goods based on which the claim is made, excluding VAT or the equivalent sales tax.
9.3 Alternatively, Fassin’s liability shall be limited to the amount of the damage for which Fassin is insured, but only in as far as the insurer will pay out under the applicable insurance policy.
9.4 Fassin shall not be liable for any claim:(i) on account of lost profit, goodwill, production, trade, anticipated savings or contracts with third parties; (ii) on account of consequential damage or indirect losses or (iii) that is made more than fourteen days after receipt of the goods or (iv) on account of damage resulting from a use of the goods for a purpose other than the purpose for which the goods are intended, (v) which is a result of a situation of force majeure (as defined in Article 11.1)
9.5 The Buyer indemnifies Fassin against all claims, losses, costs (including legal costs), penalties and damages of third parties that are recovered from Fassin, are suffered or sustained by Fassin with regard to the goods as the direct or indirect result from omissions on the part of the Buyer, its employees or agents.
9.6 All guarantees, representations, and general terms and conditions – except if explicitly set forth in these terms and conditions of sale, the distribution agreement or the contract – whether expressed or implied by regulations, unwritten law, commercial practice, etc., written or verbal, are explicitly excluded to the extent permitted by law.
9.7 Any representations regarding the goods, instructions for use and marketing claims on the goods shall be made in good faith. Fassin shall not be liable for such representations.
9.8 The Buyer indemnifies Fassin against any claims, other than the claims mentioned in Article 9.5, from third parties in the broadest sense of the word, including damage suffered by parties to whom the Buyer resold the purchased goods.
10. Confidentiality and non-analysis
10.1 The Buyer shall not disclose any confidential information that is owned by Fassin (including but not limited to specifications, formulas, production processes, know-how and technical or economic information) to third parties and shall not use these data for any purpose other than those explicitly approved by Fassin in writing for the term of the contract or any distribution agreement in place plus ten years.
10.2 The Buyer shall not analyse the chemical composition of the goods, permit such an analysis of the goods or permit such analysis with prior knowledge for any purpose other than the sale of Fassin products.
10.3 In the event of a breach of Article 10.1 or Article 10.2 the Buyer shall reimburse an immediately payable penalty of € 25,000.00 which is not subject to judicial mitigation, together with further payment of € 5,000.00 for each day that the Buyer continues to be in breach, without prejudice to the right of Fassin to claim compensation for the actual loss suffered.
11. Force majeure
11.1 Force majeure is any circumstance that is beyond the reasonable control of Fassin, such as – but not limited to – export restrictions, war, hostile acts, riots, interruption of the operations, government measures, fire, explosion, accidents, flooding, sabotage, container transport or labour, strikes, lockout or compulsory measures, compliance with the statutory regulations, breakage of machines or equipment and a lack of proper fuels, energy, raw materials, auxiliary materials and packaging materials.
11.2 If Fassin is unable to comply with the delivery obligation as a result of force majeure (see Article 11.1), Fassin shall be entitled to suspend the delivery of the goods without being considered in default and without being liable to compensate the Buyer until the force majeure situation no longer exists.
11.3 If after the end of the temporary impediment as referred to in Article 11.2 the continued performance of the contract shall be an unreasonable burden for Fassin, Fassin shall be entitled to dissolve the agreement in full or in part; in such cases, the Buyer is not entitled to claim any compensation. In the event that Fassin is permanently prevented from fulfilling its obligations on account of circumstances as referred to in Article 11.2, Fassin shall be entitled to dissolve the part of the contract that has not yet been performed at the time of the dissolution, without being liable to compensate the Buyer.
12.1 In as far one or more articles or parts of articles of these terms and conditions of sale are nullified or considered to be null and void, this shall not affect the legal validity of the other articles or parts of articles.
12.2 If Fassin fails to comply with or delays a specific condition of the contract, this does not imply that Fassin waives any rights under these general terms and conditions or the contract.
12.3 All modifications or amendments of these terms and conditions only apply if they have been agreed upon in writing and have been signed by an authorised representative of Fassin.
12.4 The Dutch text of these terms and conditions of sale shall prevail in the interpretation of the meaning.
13 Applicable law and jurisdiction
13.1 All agreements with Fassin and all disputes resulting from these agreements and these terms and conditions shall be governed by and construed in accordance with Dutch law, to the exclusion of the laws of other states and to the exclusion of the Vienna Sales Convention.
13.2 Disputes between the Buyer and Fassin shall always be submitted to the competent court in Zutphen, the Netherlands. Contrary to the provisions stipulated above in this Article 13.2, only Fassin shall be entitled to request injunctive relief in the district where the Buyer is established.